HomeMy Public PortalAbout120-2020 - Finance - Point & Pay LLC - Professional E Services, Invoicing Intergration - BS&APROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into this /_-Y- day of , 2020, and referred to as
Contract No. 120-2020, by and between the City of Richmond, Indiana, a municipal corporation acting
by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Point &
Pay, LLC, 110 State St. E., Suite D, Oldsmar, Florida, 34677 (hereinafter referred to as the "Contractor").
SECTION 1. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to provide professional and other services to furnish, provide, and
implement an e-services invoicing integration method to be connected to the City's current project
management and data conversion suite (BSA) of modules, as more fully described in Contractor's
proposal. Contractor shall perform all services described in Contractor's proposal, received August 21,
2020, marked as "Exhibit A" which Exhibit consists of ten (10) pages, and which is attached hereto and
made a part hereof. Contractor agrees to abide by the same.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions,
terms, or conditions of this Agreement, this Agreement shall be controlling.
Contractor shall perform all work herein in a timely manner, conforming to all applicable professional
standards.
The Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance; i
2. The City is in receipt of any required affidavit signed by Contractor in accordance
with Indiana Code 22-5-1.7-11(a)(2); and
3. A purchase order has been issued by the Purchasing Department.
SECTION H. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of
Richmond. The Contractor shall provide, at its own expense, competent supervision of the work.
SECTION III. COMPENSATION
No set up fee nor monthly service fee is or shall be payable pursuant to this Agreement. Fees for e-
invoicing and e-services shall be as set forth in Contractor's Proposal (Exhibit A to this Agreement).
Contract No. 120-2020
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This Agreement shall be effective when signed by all parties and shall continue in effect for three (3)
years, with subsequent one-year renewal terms as set forth in Contractor's Proposal (Exhibit A to this
Agreement).
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for
cause, at any time by giving at least five (5) working days written notice specifying the effective date and
the reasons for termination which shall include but not be limited to the following:
a. failure, for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work performed prior
to the date this Agreement is terminated, but shall be relieved of any other responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by
setting forth the reasons for such termination, the effective date, and in the case of partial termination, the
portion to be terminated.
This Agreement may also be terminated by the City if a force-majeure event occurs and the results or
aftereffects of said event causes the performance of this Agreement to become impossible or highly
impracticable. Said event or results or aftereffects of said event would include events or effects which the
parties to this Agreement could not have anticipated or controlled. Examples of a force-majeure event, or
its results, would include, but would not be limited to, events such as an Act of God, an Act of Nature, an
Act of Law, or an Emergency Act of Executive Enforcement of the Federal government, the State of
Indiana, or local government.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or
property or any other claims which may arise from the Contractor's conduct or performance of this
Agreement, either intentionally or negligently; provided, however, that nothing contained in this
Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or
employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such
insurance as will protect it from the claims set forth below which may arise out of or result from the
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Contractor's operations under this ,Agreement, whether such operations by the Contractor or by any sub-
contractors or by anyone directly or indirectly employed by any of them, or'by anyone for whose acts the
Contractor may be held responsible.
Coverage Limits
A. Worker's Compensation & Statutory
Disability Requirements
B. Employer's Liability $100,000
C. Comprehensive General Liability
Section 1. Bodily Injury $1,000,000 each occurrence
$2,000,000 aggregate
Section 2. Property Damage $1,000,000 each occurrence
D. Comprehensive Auto Liability
Section 1. Bodily Injury $1,000,000 each person
$1,000,000 each occurrence
Section 2. Property Damage $1,000,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$2,000,000 each aggregate
F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence
$2,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before
commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from
the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-
5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's
worker's compensation law, Contractor may choose to comply with all provisions of its home state's
worker's compensation law and provide the City proof of such compliance in lieu of complying With the
provisions of the Indiana Worker's Compensation Law.
SECTION VII. COMPLIANCE WITH INDIANA &VERIFY PROGRAM REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status
of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not
required to verify the work eligibility status of all newly hired employees of the contractor through the
Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of
this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does
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not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event
Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than
thirty'(30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the
violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in
breach of this Agreement and this Agreement will be terminated. If the City determines that terminating
this Agreement would be detrimental to the public interest or public property, the City may allow this
Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated
under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for
actual damages.
SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment
activities in Iran. In the event City determines during the course of this Agreement that this certification
is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor
ninety (90) days within which to respond to the written notice. In the event Contractor fails to
demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days
after the written notice is given to the Contractor, the City may proceed with any remedies it may have
pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this
certification is no longer valid and said determination is not refuted by Contractor in the manner set forth
in IC 5-22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement
and terminate the agreement upon the expiration of the ninety (90) day period set forth above.
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on
behalf of Contractor or any sub -contractor shall not discriminate against any employee or
applicant for employment to be employed in the performance of this Agreement, with respect to
hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly
related to employment, because of race, religion, color, sex, disability, national origin, or
ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
That in the hiring of employees for the performance of work under this Agreement of any
subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of
Contractor or any sub=contractor, shall not discriminate by reason of race, religion, color,
sex, national origin or ancestry against any citizen of the State of Indiana who is qualified
and available to perform the work to which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any
sub -contractor shall in no manner discriminate against or intimidate any employee hired
for the performance of work under this Agreement on account of race, religion, color,
sex, national origin or ancestry;
That there may be deducted from the amount payable to Contractor by the City under this
Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during
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which such person was discriminated against or intimidated in violation of the provisions
of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money due or to
become due hereunder may be forfeited, for, a second or any subsequent violation of the
terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation
shall be considered a material breach of this Agreement.
SECTION X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of
the same from all liability for negligence which may arise in the course of Contractor's performance of its
obligations pursuant to this Agreement.
SECTION XI. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party. Any such delegation or
assignment, without the prior written consent of the other party, shall be null and void. This Agreement
shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their
successors and assigns. This document constitutes the entire Agreement between the parties, although it
may be altered or amended in whole or in part at any time by filing with the Agreement a written
instrument setting forth such changes signed by both parties. By executing this Agreement the parties
agree that this document supersedes any previous discussion, negotiation, or conversation relating to the
subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out
of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation
shall be required prior to the commencement of legal proceedings in said Courts. By executing this
Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue,
or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of
Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other
tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly
authorized by his or her principal to execute this Contract.
In the event of any breach of this. Agreement by Contractor, and in addition to any other damages or
remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement,
including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises,
this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of
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proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day
and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Public Works and Safety
By:
Vicki Robinson, President
Emily Palmer, Member
B:
Y
Matt Evans, Member
"CONTRACTOR"
POINT & PAY, LLC
110 State St. E., Suite D
Oldsmar, FL 34677
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Title: Qili F -k jjqC-\ QL(
APPROVED: Date: 20Z1
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Date: 1011d, Z o Z o
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POINT & PAY, LLC
E-PAYMENT SERVICES AGREEMENT
Parties:
Point & Pay, LLC ("PNP")
A subsidiary of NAB, doing business in Delaware
Terms
SECTION 1 E-PAYMENT SERVICES
1.1 Access to Payment Modules
1.1.1 Pursuant to this E-Payment Services Agreement (this
"Agreement"), PNP grants Client a limited, non-exclusive, non-
transferable and terminable license for the duration of the Term
to use the electronic payment services (the "Services") and
payment modules (each, a "Module") chosen in the attached
client application ("Client Application") to enable Client's
customers ("Customers") to make payments to Client using a
Payment Device. "Payment Device" means the payment type(s)
chosen by Client on the Client Application. A description of all
Modules, Services, training and support offered by PNP is
attached as Exhibit A (the "Services Description").
1.1.2 Payment types are Debit Cards, Credit Cards or electronic
checks ("e-Check"). A "Debit Card" is a valid payment card with
a VISA, Mastercard or Discover Network mark that is tied to a
cardholder's bank account or a prepaid account and which is
processed with or without the use of a PIN. A "Credit Card" is a
valid payment card authorizing the cardholder to buy goods or
services on credit and bearing the service mark of VISA,
Mastercard, Discover Network or AXP. Client agrees to comply
with and be subject to all rules and regulations of MasterCard
International, Inc., ("MasterCard"), Visa International ("VISA"),
Discover Network ("Discover Network"), American Express
("AXP") (collectively, the "Rules") and National Automated
Clearing House Association rules and regulations ("NACHA
Rules"), as they may exist or are modified from time to time and
as applicable to Client's activities under this Agreement. Client
also agrees to comply with all guidelines, policies and procedures
for services provided to Client by PNP from time to time'
1.1.3 At the time of Client's execution of this Agreement, Client
shall also return the completed Client Application to PNP. Subject
to the terms and conditions of this Agreement, the Services may
be also be used by the affiliated offices, bureaus, agencies or
departments of Client ("Affiliates"). Each Affiliate that uses the
Services shall complete a .Client Application prior to
commencement of the Services after which PNP will recognize
such Affiliate as the Client pursuant to all of the terms and
conditions of the Agreement.
1.2 Client Representatives
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;City of Richmond, INj("Client")
PNP will provide Client's authorized representatives with a logon
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, and/or 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 or checking
account owner and the Client (provided that, with respect to
applicable service or convenience fees charges, such portion of
the transaction will be between Customer and PNP).
1.4 a -Check Transactions ACH Authorizations
1.4.1 Definitions
1.4.1.1"ACH Entry" means any electronic funds transfer initiated
through the ACH System resulting in a credit to a Designated
Account ("Debit Entry") or a debit to a designated account ("Credit
Entry"); _
1.4.1.2 "ACH System" means the automated clearinghouse or
other system used for bulk file transfers;
1.4.2 a -Check Transactions. a -Check transactions are
executed by creating or originating authorized ACH Entries using
checking account information provided by a Customer. PNP will
provide ACH origination services to Client relating to ACH
Entries, pursuant to the terms of this Agreement and the NACHA
Rules, with PNP's designated financial institution acting as an
Originating Depository Financial Institution ("ODFI") with, respect
to such ACH Entries. In addition:
1.4.2.1 Client authorizes PNP and its designated ODFI to
originate Entries on behalf of Client;
1.4.2.2 Client agrees to any restrictions on the types of ACH
Entries that may be originated;
1.4.2.3 Subject to Section 8.3 below, Client acknowledges and
agrees to the right of the PNP and its designated ODFI to
terminate or suspend this Agreement for breach of the Rules in a
manner that permits PNP and the ODFI to comply with the Rules;
1.4.2.4 Client acknowledges and agrees to the right of PNP and
the ODFI to audit Client's compliance with the Agreement,
including compliance with NACHA Rules; and
1.4.2.5 Client represents and warrants that it has the full authority
and capacity to bind its Affiliates to the terms of the Agreement.
1.5 Service Promotion
Client will use reasonable efforts to promote the Services and
build awareness of the Services with its Customers through
various media including, but not limited to:
Print: Bill inserts, counter displays, and
announcements in Client's newsletter
• Online: Home page announcements with an easily
accessible, one -click link to payments page.
• PhonellVR: Pre-recorded message with the ability to
transfer to payments IVR (e.g., "Press 2 to make a
payment") or provide the IVR phone number to call.
• Joint Press Releases: The parties shall mutually agree
upon press releases announcing the availability of
electronic payment services and the partnering of
Client and PNP.
1.6 Trademark License
PNP grants Client a limited, non-exclusive, non -transferable
license to use the PNP trademarks, service marks and logos
provided by PNP to Client (the "Trademarks") solely in
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 otherwise adversely
affects the reputation of PNP.
Customers by PNP, Customers will receive a notice each time
they use the Services stating that the Services are provided by
PNP and that a convenience or service fee is charged for use of
the Services. PNP may change the amount of such fee by
notifying Client of such new amount at least thirty (30) days prior
to such change.
2.2 Activation and Monthly Fees
If applicable, Client shall pay a one-time Activation Fee and
Monthly Fees asset forth on the Client Application. If Client does
not implement the Service under this Agreement within six
months after the Effective Date, other than due to a material
breach by PNP, all unpaid fees that would have been assessed
in the first year of the Term shall become immediately due and
payable.
2.3 Charge -backs and Returns
Unless otherwise specified in the Client Application,. and without
limiting any other rights it may have, PNP will set off (a) the
amount of any charge -backs, refusals to pay and returns from any .
amounts otherwise owing by PNP to Client and (b) a transaction
handling fee for charge -backs and non -sufficient funds (NSF) as
specified in the Client Application
2.4 ACH Debit of Fees
Client hereby authorizes PNP, and any subsidiary or successor
thereof, solely with respect to amounts due pursuant to this
Agreement and any subsequent agreements between Client and
PNP, including but not limited to convenience or service fees,
transaction fees, charge -backs and returns as set forth in
Sections 2.1 and 2.3 of this Agreement, to initiate Automated
Clearing House ("ACH") Authorizations to credit and debit Client's
bank account as set forth on the Banking Authorization Form
attached hereto as Exhibit B or otherwise provided by Client.
SECTION 3 INTELLECTUAL PROPERTY;
CONFIDENTIALITY
3.1 No Transfer or License
Except for the rights expressly granted to Client in this
1.7 Client Logo License Agreement, no PNP Intellectual Property Right is transferred or
Client grants PNP a limited, non-exclusive, non -transferable licensed to Client pursuant to this Agreement, by implication or
license to use its applicable logos, copyrighted works and otherwise. PNP reserves and retains all rights, title and interests
trademarks ("Client Marks") solely in connection with the in and to the PNP Intellectual Property Rights, and all copies,
Services provided to Client. Client shall provide the Client Marks revisions, modifications, updates, and upgrades thereof. Client
to PNP for use with the Services. Client represents that it has all agrees not to remove, alter or destroy any copyright, patent
intellectual property rights required for Client's and PNP's use of notice, trademark or other proprietary markings or confidential
Client Marks, and shall indemnify PNP against any third party legends placed on or within any portion of the PNP Intellectual
claims that the Client Marks infringe the intellectual property Property Rights. For purposes of this Agreement, "Intellectual
rights of a third party. Property Rights" means all the intellectual property, industrial
and other proprietary rights, protected or protectable, under the
SECTION 2 COMPENSATION laws of the .United States, any foreign country, or any political
subdivision thereof, including (a) all trade names, trade dress,
2.1 Services Transaction Fee trademarks, service marks, logos, brand names and other
PNP will charge the transaction fee to use the Services set forth identifiers, (b) copyrights, moral rights (including rights of
on the Client Application. If Services fees are charged directly to attribution and rights of integrity), (c) all trade secrets, inventions,
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discoveries, devices, processes, designs, techniques, ideas,
know-how and other confidential or proprietary information,
whether or not reduced to practice, (d) all domestic and foreign
patents and the registrations, applications, renewals, extensions
and continuations (in whole or in part) thereof, and (e) all goodwill
associated with any of the foregoing and (f) all rights and causes
of action for infringement, misappropriation, misuse, dilution or
unfair trade practices associated with (a) through (d) above.
3.2 Ownership and Use of PNP Materials
Any software developed by or on behalf of PNP for use in
connection with the Services remains the exclusive property of
PNP. Client will not sell, transfer, barter, trade, license, modify
or copy any such software. Web pages accessible through use
of the Services are the copyrighted intellectual property of PNP
and may not be copied in whole or part by anyone. Any training
materials (including, but not limited to, webinars and manuals)
provided to Client by PNP shall remain the exclusive property of
PNP. PNP grants Client and Client's personnel a limited, non-
exclusive, non-transferrable license to use and to make copies of
the training materials with its personnel solely in connection with
the Services. Training materials may not be modified by Client or
its personnel or disclosed to any third party, including Client's
end -user Customers. Client shall ensure all personnel shall
complete and review all training materials prior to using the
Services.
3.3 Reverse Engineering
Client will not reverse engineer, reverse assemble, decompile or
disassemble any of PNP's intellectual property, nor will Client
attempt to do so or enable any third party to do so or otherwise
attempt to discover any source code, modify the Service in any
manner or form, or use unauthorized modified versions of the
Service, including (without limitation) for the purpose of building
a similar or competitive product or service or for the purpose of
obtaining unauthorized access to the Service. Client is expressly
prohibited from sublicensing use of the Service to any third
parties. If Client becomes aware that any person has engaged
or is likely to have engaged in any of the activities described in
this Section 3.3, Client will promptly notify PNP.
3.4 Confidential Information
3.4.1 Any Confidential Information provided by PNP to Client
pursuant to this Agreement will remain the exclusive property of
PNP. Client will disclose such Confidential Information only to
those of its representatives and employees who need to know
such Confidential Information for purposes of performing this
Agreement, who are informed of the confidential nature of the
Confidential Information and who agree, for the benefit of PNP,
to be bound by the terms of confidentiality in this Agreement.
Client will, and will cause each of its representatives and
employees, to keep confidential and not to disclose in any
manner whatsoever any Confidential Information provided by
PNP pursuant to this Agreement, and not to use such Confidential
Information, in whole or in part, directly or indirectly, for any
purpose at any time other than for the purposes contemplated by
this Agreement. Notwithstanding the foregoing, if Client is a city,
county, township or similar entity, or government agency or
department thereof, Client may disclose Confidential Information
as necessary to comply with applicable public records laws.
3.4.2 For purposes of this Agreement, "Confidential
Information" means all nonpublic or proprietary information of
PNP, including proprietary, technical, development, marketing,
sales, operating, performances, cost, know-how, business and
process information, computer programs and programming
techniques, security features (including, without limitation, multi-
level access and log -in features, audit trail setup, interfaces
between the Counter Module and the Internet or IVR Modules),
all record bearing media containing or disclosing such information
and techniques, and anything marked confidential, that is
disclosed by PNP to Client pursuant to this Agreement.
Confidential Information also includes the terms and conditions of
this Agreement.
3.5 Exclusions
The term Confidential Information will not apply to information
that: (a) is or becomes generally available to the public other than
as a result of a disclosure by Client in breach of this Agreement;
(b) was within. Client's possession prior to its disclosure by or on
behalf of PNP, provided that the discloser of such information was
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; (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 disclose any Confidential Information provided
pursuant to this Agreement, Client will provide PNP with prompt
written notice so that PNP may seek a protective order or other
appropriate remedy or waive compliance with the confidentiality
provisions of this Agreement.
3.6 Failure to Comply
If Client fails to comply with any of its obligations pursuant to this
Section 3, PNP will have the right to immediately terminate this
Agreement by providing written notice of such termination to
Client.
3.7 Survival
The rights and obligations of the parties provided for in this
Section 3 will survive any expiration or termination of this
Agreement or its term.
SECTION 4 WARRANTIES; DISCLAIMER
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4.1 Warranties
4.1.1 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.
4.1.2 PNP represents and warrants that the Services will be
provided in a professional, workman -like manner consistent with
industry standards.
4.2 Disclaimers
4.2.1 PNP does not represent that Client's or its Customers use
of the Services will be uninterrupted or error -free, or that the
system that makes the Services available will be free of viruses
or other harmful components resulting from the Internet or any
third party providers or products outside the control of PNP.
4.2.2 EXCEPT FOR THE WARRANTIES EXPRESSLY SET
FORTH IN THIS SECTION 4, PNP DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON -INFRINGEMENT. THE
SERVICE IS PROVIDED TO CLIENT ON AN "AS IS" AND "AS
AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY.
SECTION 5 LIMITATIONS OF LIABILITY AND
OBLIGATION
5.1 Damages and Liability Limit
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY IN CONNECTION
WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR
PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST
PROFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY
RELEASES THE OTHER PARTY AND ALL OF THE OTHER
PARTY'S AFFILIATES, EMPLOYEES, AND AGENTS FROM
ANY SUCH DAMAGES. IN NO EVENT WILL PNP HAVE OR
INCUR ANY LIABILITY TO CLIENT OR ANY THIRD PARTY IN
EXCESS OF THE AGGREGATE COMPENSATION RECEIVED
BY PNP FOR THE SIX-MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO A CLAIM FOR
SUCH LIABILITY. THE FOREGOING EXCLUSIONS AND
LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY
FAILS ITS ESSENTIAL PURPOSE.
5.2 Refusals of Payment
PNP will not be liable for charge -backs or other refusals of
payment initiated by any Customer. All such charge -backs and
other refusals of payment will be refunded by PNP to the
Customer and Client will mark and otherwise treat the related
Customer account as "unpaid."
5.3 Errors and Omissions
PNP will not be liable for any errors or omissions in data provided
by Client or Customers. Client will be responsible for the
accuracy of data provided to PNP for use in providing the
Services.
5.4 Bank Actions
PNP will not be liable for any errors, omissions or delays
attributable to the acts or omissions of any bank or other third
party involved in the processing of any Payment Device payment.
SECTION 6 CARDHOLDER DATA SECURITY
To the extent applicable, each of the parties shall be required to
comply at all times with the Payment Card Industry Data Security
Standard Program ("PCI-DSS") in effect and as may be amended
from time to time during the term of the Agreement. The current
PCI-DSS specifications are available on the PCI Security
Standards Council website which may be amended or modified
at any time: https://www.pcisecuritystandards.org.
SECTION 7 EXCLUSIVITY
Client agrees that PNP will be the':exclusive provider of electronic
payment services and. that Client `may not procure similar such
services from any other party.
SECTION 8 TERM AND TERMINATION
8.1 Term
The initial term of this Agreement will commence on the Effective
Date and will end on the third (3rd) anniversary of the Effective
Date (the "Initial Term"). This Agreement will automatically
renew for successive one (1)-year terms (each, a "Renewal
Term," and the Initial Term and any Renewal Term may be
referred to as a "Term"). The term of this Agreement will
terminate at the end of the Initial Term or any subsequent
Renewal Term if either party provides written notice of such
termination to the other party at least sixty (60) days prior to the
expiration of the applicable Term.
8.2 In the Event of Breach; Effect on Affiliates
8.2.1 Subject to the opportunity to cure set forth below, either
party may terminate this Agreement upon sixty (60) days written
notice to the other party in the event of a material, uncured
breach of any provision of this Agreement by the other party.
Such notice by the complaining party shall expressly state all of
the reasons for the claimed breach in sufficient detail so as to
provide the alleged breaching party a meaningful opportunity to
cure such alleged breach ("Notice").
8.2.2 Following receipt of Notice, the alleged breaching party
shall have sixty (60) days to cure such alleged breach. Upon
termination or expiration of this Agreement, Client shall have'no
rights to continue use of the Service or the Modules. Expiration
or termination of the Agreement by Client or PNP shall also
terminate the Affiliates' rights under the Agreement unless
otherwise agreed by the parties in writing. PNP may terminate
the Agreement solely with respect to an individual Affiliate
PNP E-Payment Services Agreement v4.O rev _' i
062220 !'�
without affecting the rights and obligations of Client and other
Affiliates under the Agreement.
8.3 Modification to or Discontinuation of the Service
PNP reserves the right at any time and from time to time to
modify, temporarily or permanently, the Service (or any part
thereof). In addition, PNP will have the right to discontinue
accepting any Payment Device by providing not less than ten (10)
days' written notice to Client. In the event that PNP modifies the
Service in a manner which removes or disables a feature or
functionality on which Client materially relies, PNP, at Client's
request, shall use commercially reasonable efforts to
substantially restore such functionality to Client. In the event that
PNP is unable to substantially restore such functionality within
sixty (60) days, Client shall have the right to terminate the
Agreement. Client acknowledges that PNP reserves the 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.
SECTION 9 PAYMENT DEVICE TRANSACTION
DEPOSITS
The exact amount of each approved Payment Device transaction
will be electronically deposited into the Client bank account
identified on the Client Application. PNP shall initiate such
deposits as specified on the attached Client Application. PNP will
provide Client's authorized employees with access to PNP's
online transaction reports for reconciliation purposes.
SECTION 10 FORCE MAJEURE
PNP will not be responsible for its failure to perform under this
Agreement due to causes beyond its reasonable control,
including acts of God, wars, riots, revolutions, acts of civil or
military authorities, terrorism, fires, floods, sabotage, nuclear
incidents, earthquakes, storms, pandemics or epidemics. If the
provision of Services under this Agreement is delayed by such an
event or condition, PNP will promptly notify Client thereof. PNP
will use commercially reasonable efforts to overcome any such
cause for delay as soon as is reasonably practicable.
SECTION 11 GOVERNING LAW
This Agreement will be interpreted, construed and enforced in all
respects in accordance with the laws of the State of Florida
without reference to its conflicts of law principles.
SECTION 12 NOTICES
All notices or other communications required or permitted by this
Agreement must be in writing and will be deemed to have been
duly given when delivered personally to the party for whom such
notice was intended, or upon actual receipt if sent by facsimile or
delivered by a nationally recognized overnight delivery service, or
at the expiration of the third day after the date of deposit if
deposited in the United States mail, postage pre -paid, certified or
registered, return receipt requested, to the respective parties at:
If to Client:. See Merchant Application
If to PNP: Point & Pay, LLC
110 State St. E, Suite D
Oldsmar, FL 34677
SECTION 13 MISCELLANEOUS
The headings of sections and subsections of this Agreement are
for convenience of reference only and will not be construed to
alter the meaning of any provision of this Agreement. PNP is an
independent contractor and nothing in this Agreement will be
deemed to create any agency, employee -employer relationship,
partnership, franchise or joint venture between the parties.
Except as otherwise specifically provided in this Agreement,
neither party will have, or represent that it has the right, power or
authority to bind, contract or commit the other party or to create
any obligation on behalf of the other party. Each of the parties
will have any and all rights and remedies available to them under
all applicable laws. The remedies provided for in this Agreement
will be deemed to be non-exclusive and in addition to any other
available remedy at law or in equity. All rights and remedies are
cumulative and may be exercised singularly or concurrently.
Client may not assign or transfer any of its rights or delegate any
of its obligations under this Agreement to any third party, by
operation of law or otherwise, without the prior written consent of
PNP. Any attempted assignment or transfer in violation of the
foregoing will be void. This Agreement will be binding upon, and
inure to the benefit of, the successors and permitted assigns of
the parties. Client shall comply with all applicable laws, rules,
treaties, and regulations in its performance of this Agreement,
including, without limitation, the Rules and NACHA Rules. If any
provision of this Agreement is held by a court of law to be.illegal,
invalid or unenforceable, the remaining provisions of this
Agreement will not be affected and the illegal, invalid, or
unenforceable provision will be deemed modified such that it the
intention of the parties to the fullest extent possible. No
amendment or modification of this Agreement will be effective
unless it is in writing and executed by both of the parties. Nothing
contained in this Agreement establishes, creates, or is intended
to or will be construed to establish or create, any right in or
obligation to any third party. This Agreement, the Exhibit(s) and
the Client Application set forth the entire agreement and
understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous
understandings and agreements, whether written or oral,
between the parties with respect to such subject matter.
The parties have duly executed this Agreement as of the date of the last signature below (the "Effective Date").
PNP E-Payment Services Agreementv4.O rev'sLaA t-,its O
062220 L-5 �—
Point & Pay, LLC .
By:
Name:
Title:
Date:
PNP E-Payment Services Agreement v4.0 rev
062220
;City of Richmond, IN
,
Name:
Title:
Date:
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 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 include 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 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 arid'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 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
PNP shall provide services and technical support to Client via telephone during regular business hours. Support availability shall be exclusive
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
Exhibit B
Client Application
Ex,11—Y i� e a'9 � 2=ID
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PNP E-Payment Services Agreement v2.0 rev
071008