2010-48 no late -: •- • :GEN
TRANSACTION PROCESSING AGREEMENT
This Transaction Processing Agreement ( "Agreement ") is effective as of
August 19, 2010 (the "Effective Date ") by and between No Late Payments, LLC
( "Company ") and City of Clermont (the "Government entity").
•
RECITALS:
A. Company is in the business of, among other things, providing for the processing
of electronic payment transactions including transactions for governmental
entities. Government Entity is in the State of Florida .
13. Government Entity has the statutory authority to accept credit card or electronic
payment transactions for taxes, court fines, utility payments, building permit
fees, or similar payments imposed by department or bureau ( "Agency ") of the -
Government Entity. Government Entity desires to provide for the acceptance of
payment by credit card or other electronic transactions.
IN CONSIDERATION OF THE ABOVE, the parties agree as follows:
1.0 Program.
1.1 Services. Company will provide payment processing services (the
"Service ") relating to (see "Recitals: Section B ") through credit card or other electronic
payment transactions (each a "Transaction). The Services are more particularly
described in the Agreement and on Schedule 1, as the same may be amended from time
to time.
1.2 Hardware and Software. Company shall provide the Government Entity
with the number and type of hand held devices or other hardware as described on
Schedule 1 (the "Hardware ") and certain proprietary software identified by Company
(the "Software ") for the operation of the Hardware for the initiation and processing of
Transactions under this Agreement and that are required for this program. Government
Entity shall provide all other hardware, software or services necessary for the Program
including, without limitation, internet access or wireless access for the Hardware. Upon
termination of this Agreement, Company has the right to turn off the use of the
proprietary software and at the Company's sole discretion has the right to charge the .
Government Entity for the cost of repair or maintenance of the proprietary Software if
such- repair is caused by the improper use of the Hardware or Software by an Agency or .
Government Entity.
1.3 Convenience Fee. Government Entity shall require "Agency" to collect a
Convenience Fee (the "Convenience Fee ") for each Transaction in an amount
established by Company and agreed to by Government Entity. The Convenience Fee
can be changed with Company and Government Entity agreement from time to time.
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The initial Convenience Fee is as shown on Schedule 1. Company will cause the
Software to automatically process and to require approval of the Consumer
Convenience Fee at the time the Transaction is approved and, in the absence of
approval of the Consumer Convenience Fee, to terminate the Transaction.
1.4 Collection Account. Company shall establish and maintain a deposit
account with an insured depository organization (the "Collection Account "). All
Transaction proceeds, Consumer Convenience Fees and Agency Bank fees shall be
deposited in to the Collection Account. The Collection Account may, in Company's
discretion, be interest or non - interest bearing. Company shall transfer from the
Collection Account to a deposit account designated by Government Entity (the
"Government Entity Account ") an amount equal to the collected funds in the Collection
Account attributable to Transactions less the Consumer Convenience Fee within one
business day after receiving the funds in the Collection Account. All amounts in the
Collection Account not due Government Entity shall remain the sole property of
Company.
1.5 Training. Company will train employees selected by Government Entity.
Training to include the installation and operation of all related Hardware and Software
required to complete agreed upon Transactions. Training shall occur at the designated
locations authorized by Government Entity.
1.6 Credit Card, Clearinghouse and Similar Rules. Government Entity and
Company shall cooperate in complying with all rules and regulations of credit card
associations, NACHA, automated clearinghouse, Check21 associations and similar
organizations applicable to credit card transactions, electronic transaction processing or
similar transaction processing or otherwise governing the acceptance or processing of
Transactions.
1.7 Chargeback. Government Entity is solely responsible for any Transaction
that is charged back by a Customer or otherwise rejected under credit card rules and
regulations or other electronic processing rules and regulations (the "Chargebacks ").
Company may, in its discretion, setoff the Chargeback against amounts due Government
Entity from the Collection Account, including, without limitation any reserve balance
maintained in the Account. Company will promptly provide Government Entity
written notice of the Chargeback and setoff, if any, against the Collection Account. The
Government Entity's liability for Chargebacks shall survive the termination of this
Agreement. Upon termination of this Agreement, Company may reserve a collected
balance in the Collection Account for a period of 60 calendar days following the date of
termination and setoff Chargebacks against such reserve amount. Maintenance of the
reserve balance shall not limit or otherwise impair Government Entity's obligation for
Chargebacks.
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1.8 Chargeback Procedures.
1.8.1 Upon notice of chargeback from Company, Government Entity
must present supporting documents including but not limited to signed sales
receipts, copies of ticket, fines, invoices or any other supporting documentation
that substantiates and defines Cardholders indebtedness to Government Entity
and their agreement to paying using their Credit /Debit Card.
1.8.2 Government Entity must present to Company via either fax or email
all requested documents by Company within 2 business days from Company's
request. Failure to produce requested documents within the time period will
result in an assumption of chargeback liability by Government Entity.
1.8.3 Communication to Company must be addressed to Company via
either email at manauer(cimolatepayments.cotn or fax (208) 498 -1667.
1.8.4 Government Entity must provide to Company corresponding email,
fax number and responsible party for all chargeback communications.
1.8.5 Communication to all persons referred to in Sections 1.8.3 and
1.8.4 may be amended from time to time as deemed necessary by either party:
Term and Termination.
1.9 Term. The term of this Agreement commences on the Effective Date and
terminates on the 1st anniversary of the Effective Date (the "Initial Term "). The Initial
Term shall renew for an additional renewal term of one year, commencing on the
anniversary of the Effective Date occurring in calendar year (each a "Renewal Date ")
and terminating on the anniversary of the Effective Date (each a "Renewal Term "). The
Initial Term and the Renewal Terms, if any, are referred to collectively as the "Term ".
. Either party may terminate this Agreement to be effective on the expiration of the
Initial Term or on any Renewal Date by providing written notice to the other party on or
before the sixtieth (60 calendar day preceding the next Renewal Date.
1.10 Early Termination by Government Entity. Government Entity may
terminate this Agreement upon (a) 30 calendar days written notice to Company
following Company's failure to perform any material term of this Agreement when and
as required to be performed by Company or the failure of a Company representation and
warranty to be materially true and correct, unless Company shall have cured such
failure to the reasonable satisfaction of Government Entity on or before the expiration
of the notice period or (b) upon the imposition of a receivership, conservatorship or
involuntary liquidation of Company or the institution of any proceedings in insolvency
or bankruptcy, whether voluntary or involuntary. -
1.11 Company Early Termination.
1.11.1 Company may terminate this Agreement upon written notice to
Government Entity (a) upon 30 calendar days written notice to Government
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Entity following Government Entity's failure to perform any material term of
this Agreement when and as required to be performed by Government Entity, or
the failure of a Company representation and warranty to be materially true and
correct, unless Government Entity shall have cured such failure to the reasonable
satisfaction of Company on or before the expiration of the notice period or (b)
the acceptance by Government Entity of services of similar kind and nature to
the Services from any person other than Company (except for those services of
similar kind or nature that are being received by Government Entity prior to the
date of this Agreement) or (c) upon the imposition of a receivership,
conservatorship or involuntary liquidation of Government Entity or the
institution of any proceedings in insolvency or bankruptcy, whether voluntary or
involuntary.
1.12 Early Termination. Notwithstanding any other provision of this
Agreement, either Government Entity or Company may terminate this Agreement upon
written notice to the other party and without further obligation to the other party upon
the reasonable determination that the further performance of this Agreement by either
Company or Government Entity violates, conflicts with or is prohibited by (a) any
credit card or electronic processing regulations or rules, member agreements or rules or
similar agreements, regulations or rules applicable to the acceptance or processing of
the Transactions or (b) any law or regulation applicable to Company or Government
Entity or the processing of the Transactions.
•
2.0 Representations and Warranties.
2.1 Representations and Warranties of Government Entity. Government
Entity represents and warrants to Company that this Agreement and the Program are
authorized by, and do not conflict with, any statute, regulation or other law governing
the activities of Government Entity or "Agency" including, without limitation, any law
relating to the collection of court fines or similar payments generally, or the deposit or
• control of Government Entity funds, or the letting of public contracts by competitive
bidding or other process. Government Entity further represents and warrants to
Company that this Agreement, when executed in the manner provided below, is the
valid and binding obligation of the Government Entity enforceable in accordance with
its terms.
2.2 Representations and Warranties of Company. Company represents' and
warrants to Government Entity that (a) to the best knowledge of Company after due
inquiry with the Compliance Department of the processor, Elavon, this Agreement and
the Program are authorized by, and do not conflict with, the Rules and Regulations of
Visa or MasterCard, or other law governing the proposed financial transactions
(excluding, however, any statutes, regulations or other laws governing Government
Entity or any Agency) and (b) this Agreement, when executed in the manner provided
below, is the duly authorized agreement of Company, and is the valid and binding
obligation of Company enforceable in accordance with its terms. This obligation shall
continue with any change in the processor or platform, as referenced in Schedule 1.
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3.0 Exclusivity.
3.1 Exclusivity. Government Entity agrees to accord Company the exclusive
right to provide services substantially similar to the Services contemplated by this
Agreement. Provided, however, to the extent Government Entity is receiving services
that are substantially similar prior to the date of this Agreement, it may continue to
receive those services without being in violation of this provision.
4.0 Liability and Limitations •
4.1 Limitation on Warranties. THE WARRANTIES EXPRESSED IN THIS
AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES. THERE ARE NO
FURTHER OR ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE. THE WARRANTIES . OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
HEREBY EXPRESSLY DISCLAIMED. ALL WARRANTIES EXPRESSED HEREIN
ARE SOLELY TO GOVERNMENT ENTITY AND ARE NOT INTENDED FOR, AND
SHALL NOT BE RELIED UPON BY, ANY OTHER PERSON OR ENTITY.
4.2 Limitation on Damages. Neither party shall be liable to the other for
indirect, incidental, special, punitive or consequential damages arising out of this
Agreement or the failure in performance of either party. All claims of Government
Entity or Company for actual direct damages relating to the Services or this Agreement
shall be limited to the amount actually paid by Government Entity in respect of Services
during the calendar month proceeding the month in which the event giving rise to the
claim of actual direct damages shall have occurred.
4.3 Force Majeure. A party shall be excused for performance of, and excused
for liability for the failure in performance of, any term or obligation of this Agreement
if, and to the extent, such failure in performance is substantially caused by an
intervening or supervening event or condition beyond the reasonable control of such
party, including acts of God, disruption of third party services, governmental demands
or orders, failures of equipment not caused by the negligence of such party and similar
acts, events or conditions customarily known and referred to as "force majeure ". A
party's failure in performance shall by excused under this Agreement for so long as
such party reasonably and diligently pursues cure of such failure or the relief of the
force majeure and the resumption of performance under this Agreement.
5.0 Privacy and Confidentiality.
5.1 Covered Information. Company acknowledge that it may receive, view or
otherwise have access to proprietary or confidential information of Government Entity
or Agency or of a payor, including, nonpublic personal information, in connection with
delivery of the Services (collectively, including the Information and the Items defined
above, the "Covered Information "). Company shall not copy, disclose or use, for any
purpose, any of the Covered Information without the prior written consent of
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Government Entity, which Government Entity may grant or withhold in its sole
discretion, except (a) as reasonably necessary for the provision of the Services in
accordance with industry standards and. (b) in accordance with governing law.
Company shall take all reasonable actions necessary for the preservation of the
confidentiality and privacy of the Covered Information. Company will promptly notify
Government Entity of the disclosure or use of the Covered Information by Company in
contravention of this Agreement, whether such use or disclosure is intentional or
inadvertent.
5.2 Compliance with Law. Company acknowledges that the Covered
Information, and Company's possession of the Covered Information, are subject to
. obligations of confidentiality and privacy under governing law and regulation .
including, without limitation, obligations imposed under federal financial privacy laws
and regulations. Company agrees to fully cooperate with Government Entity in the
preservation of the confidentiality and privacy of the Covered Information and in
Government Entity's compliance with the confidentiality and privacy obligations under
governing law and regulations.
6.0 Indemnification. To the extent provided by law, both Government Entity and
Company each agree to defend, indemnify and hold the other harmless from any and
all claims, loss, cost and expense, including court costs and attorneys fees,.arising out
of or related to the failure of any representation or warranty of the other to be materially
true and correct on and after the Effective Time to and including the date of
termination of this Agreement. If Government Entity or Company is made a party to
any proceeding for which the other is required to defend, indemnify or hold harmless,
the other shall have the right to select counsel to represent that party at the other's sole
cost and expense, subject to that party's consent, which consent shall not be unreasonably
withheld, and to otherwise control such litigation, proceedings, negotiations or arbitration.
The party receiving the defense and indemnification may, but is not obligated to do so,
retain separate counsel at its sole cost and expense, and may participate in defense of such
claim. The parties shall cooperate in the defense of any such claim, including providing
to the other party on request any information and documentation in their possession which
is reasonably necessary to defend such claim and providing reasonable access to all books,
records and personnel in their possession or under their control which would have a bearing on
the defense of such claim. The party providing the defense and indemnification shall
have the right to compromise or settle such claim on behalf of the indemnified party,
but will not consent to the entry of any judgment or enter into any settlement with
respect to such claim without the written consent of the indemnified party, which
consent shall not be unreasonably withheld. Notwithstanding any other provision
herein, a party shall only be liable for the pro rata share of the total damages awarded in
favor of a claimant that is attributable to the wrongful acts or omissions of that party or
its employees. Nothing herein shall be construed or act as a waiver of sovereign immunity that
Governmental Entity may enjoy.
7.0 Miscellaneous Provisions.
7.1 . Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Idaho.
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7.2 Amendment and Waiver. The parties agree to execute such further
documents and instruments and take such further actions as may be reasonably
necessary or convenient to effectuate the intention of this Agreement. This Agreement
may not be amended except by an instrument in writing signed by the parties. Either
party hereto may (a) extend the time for the performance of any of the obligations or
other acts of any other parties or (b) waive compliance with any provision of this
Agreement or with any conditions to its own obligations. Such waiver shall be
effective only if made in writing, shall be limited only to the specific provision or
condition so waived and shall not be interpreted to provide for or require the waiver of
the same or any other provision or condition at any time.
7.3 Entire Agreement. This Agreement represents the entire agreement of the
parties hereto and supersedes any prior agreements or negotiations of the parties,
whether oral or written.
7.4 Further Assurances. The parties agree to execute such further documents
and instruments and take such further actions as may be reasonably necessary or
convenient to effectuate the intention of this Agreement.
7.5 Time. Time is of the essence of this Agreement.
NO LATE PAYu . NTS, LL
By:
ark Flory i
Its: Managing Member
Date: 9 2,72/ D
I the affovesigned have at the date of the signing of this agreement the authority under Federal, State
and local law /statute to enter into this agreement /contract.
City of Clermont
(Government Entity)
By: � Er
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1 -P'trr . 77 Ai Ile ,L)
its: AN) jesr
Date:
I the above signed have at the date of the signing of this agreement the authority under Federal, State
and local law /statute to enter into this agreement/contract.
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For any questions regarding this contact, please contact us at:
No Late Payments
16 12 Ave S, Suite 111
Nampa, ID 83651
208 - 498 -1666 (voice)
208 - 498 -1667 (fax)
in anagerruln0 late pavments.com
Contracts, Compliance, Administrative: Wylie Griffith
w gri frith COI xtran.coin
Project Management, Reporting, Implementation: Mark Flory
m 'tory 0, nxtran.com
System Administration, Security, PCI DSS: Dan Harrington
dharrington(d?nxtran.com
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SCHEDULE
Services: Credit Card & Electronic Check Processing Services
Convenience Fee: 2.75%
Consumer Convenience fee paid by Credit Card: 2.75% ($0.50 Minimum)
Consumer Convenience fee paid by Electronic Check: $3.00
Monthly Support Fee paid by Government Entity: $25
Hardware, Software and Internet Applications:
*No hardware, software or Internet applications are provided. *
*All will be provided by third party vendor.*
NO LATE PANTS C
By: /
ark Flory C
Its: Managing Member
Date: ?4/ 2-00
200
I the above signed have at the date of the signing of this agreement the authority under Federal, State
and local law /statute to enter into this agreement /contract.
City of Clermont •
(Government Er
By:
41111ritw 2
Its: _MitN)
Date: q c20/6
I the above signed have at the date of the signing of this agreement the authority under Federal, State
and local law /statute to enter into this agreement /contract.
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