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HomeMy WebLinkAboutCSG Forte Payments, Inc. - 2021-05-03 (2) PAYMENT PROCESSING AGREEMENT This Payment Processing Agreement("Agreement"), including all applicable appendices and addendums hereto, is entered into as of May 3rd ,20 21(the"Effective Date") by and between CSG Forte Payments, Inc. ("FORTE" or"Party") a Delaware corporation and Huntington Beach ("AGENCY"or"Party"), FORTE and its affiliates provide payment processing and related services including but not limited to Automated Clearing House("ACH ),Credit and Debit Card processing, account verification and customer identification (collectively and individually,as applicable,the "Services' to AGENCY who provides services to,or otherwise has a business relationship with, individuals and other entities("Constituents"). 1. GENERAL The Agreement shall consist of these terms and conditions, each of the Appendices attached hereto if applicable, and all modifications and amendments thereto. Under the terms of the Agreement,AGENCY will be furnished with the products and services described in the Agreement and attached Appendices, which are selected by Agency and approved by FORTE. For any terms herein that are specifically applicable to any particular product or service offered by FORTE,only the terms and conditions that apply to the specific Service(s)requested by Agency at any given time shall apply. 2. USAGE 2.1 Subject to the terms and conditions of this Agreement, FORTE hereby grants to AGENCY a non- exclusive and non-transferable license to access and use FORM products and services contracted for and AGENCY hereby accepts such license and agrees to utilize and access the Services in accordance with the practices and procedures established by FORTE. AGENCY may use the Services(a) for its own internal business purposes and operations,and/or(b)as a service provided to its Constituents,unless otherwise notified by FORTE. No license or right to use,reproduce, translate, rearrange, modify,enhance,display,sell, lease, sublicense or otherwise distribute,transfer or dispose of any of FORM Proprietary Property,as defined in Section 3 below, in whole or in part, is granted except as expressly provided by this Agreement. Neither 'AGENCY nor any of its affiliates shall reverse engineer,decompile or disassemble the Proprietary Property. Additionally,nothing in this Agreement shall be construed to provide AGENCY with a license of any third-party, proprietary information or property. 2.2 AGENCY shall ensure that its Users comply with all applicable requirements of this Agreement. AGENCY is responsible for protecting the confidentiality of any and all passwords and credentials provided to AGENCY by FORTE for the purpose of utilizing the Services or other forms of access to AGENCY's accounts with FORTE.AGENCY is responsible for the security of its systems,locations and equipment used in processing transactions under this Agreement and for developing security procedures and training its employees on the procedures. AGENCY expressly assumes responsibility for the acts or omissions of all Users on its aecount(s)with FORTE- and for User access to FORTE's aystems either directly or through software. 3. OWNERSHIP All computer programs,trademarks,service marks,patents, copyrights,wade secrets, know-how,and other proorietary rights in or related to FORTE's products and services(the"Proprietary Property"), are and will remain the sole and exclusive property of FURI E,whether or not speclncany recogm=or per=ea under applu;aole law. FORTE shall own all rights,title and interest, including all intellectual property rights, in and to any improvements to the existing FORTE products or services and/or any new programs, upgrades,modifications or enhancements developed by FORTE in connection with rendering any services to AGENCY (or any of its affiliates),even when refinements and improvements result from AGENCY's request.To the extent, if any,that ownership in such refinements and improvements does not automatically vest in FORTE by virtue of this Agreement or otherwise,AGENCY hereby expressly transfers and assigns(and, if applicable, shall cause its affiliates to transfer and assign)to FORTE all rights,title, and interest which AGENCY or any of its affiliates may have in and to such refinements and improvements. All reference to any of FORTE's service marks, 18.10.01 Page 1 trademarks, patents- or copyrights, or those of FORTE'S partners or vendors, shall be made in compliance with the requirements, including periodic updates thereto. as provided at hitp:/haww.forte.net/trademark. 4. CONFIDENTIALITY The Parties acknowledge that, by virtue of this Agreement, each has been and will continue to be entrusted with certain Confidential Information (as defined in Appendix A) pertaining to the other's business. including but not limited to proprietary information developed by. acquired by, or licensed to each Par iv. Each Party agrees that, except to the extent and in the manner necessary to perform its duties hereunder, it will not disclose to others or use for its own benefit any Confidential Information of the other Party and it will hold all Proprietap Property as defined herein confidential in perpetuity. Additionally, in the course of providing and receiving the Services. each Party acknowledges that it may receive or have access to information which can be used to identify an individual consumer(including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses, payment history, and other unique identifiers)("Personal Information' ). As such, each Party shall (i) keep all personal Infonnation in strict confidence, with the degree of care necessary to avoid unauthorized access, use or disclosure; (ii) use Personal Information solely and exclusively far the purposes provided in this Agreement; (iii) implement administrative. physical and technical safeguards to protect personal Infonnation that are at least as rigorous as accepted industry practices; (iv) as applicable, have in place a program that complies with applicable legal requirements regarding Personal Information. Except with respect to Personal Information, this section will not apply to Confidential Information that (i) was already available to the public at the time of disclosure, (ii) becomes generally known to the public after disclosure to the other party, through no fault of the other party. (iii) is disclosed under force of tax\,, governmental regulation or court order. (iv) is required to be disclosed by a banking partner, an Acquirer or an applicable Payment Association. 5. TERM AND TERMINATION 5.1 Term, This Agreement shall have an initial term of three (3) years. Thereafter, this Agreement will automatically renew for additional one (1)year terms unless either Party provides thirty (30)days' prior written notice of termination to the other party. 5.2 Termination. In the event of a material breach of this Agreement by one Party and f'ailurc to cure within thirty(30) days of receipt of written notice of the breach, the other Party may terminate immediately by providing written notice of termination. Additionally. FORTE, may immediately terminate this Agreement without prior notice in the event that (i) there is a material adverse change to AGENCY or its financial condition: or(ii) AGENCY experiences excessive chargebacks; or(iii) AGENCY experiences an actual or suspected data security breach: or(iv) AGENCY violates any applicable Law, Rule or Regulation; or(v) if FORTE is instructed to terminate by Financial Institution. Acquirer or Payment Association. 6. TRANSACTION PROCESSING 6.1 Accepting Transactions. FORTE shall process Credit Card. Debit Card and ACH Transactions on the AGENCY's behalf on a 24-11our basis. l7ansactions which are received before the daily designated cut-off time will be originated for settlement through the corresponding Payment Network. Transactions which are received after the designated cut-off time will be included in the next business days settlement processing. 6.1.1 y Sale Transactions. if a Transaction is sent to FORTE as a sale of goods or services, it will automatically be captured for settlement in time for the next designated cut-off time. 6.12 Auth/Capture Transactions. If a Transaction is sent to FORTE for authorization only or for delayed processing,then it will be the responsibility of AGENCY to submit a corresponding '`capture'Transaction within 48 hours of the authorization in order to complete the Transaction process for settlement. Transactions which are not captured within 48 hours of Authorization are untimely and may be rejected by FORTE. 62 Transaction Format. FORTE is responsible only f'or processing Transactions which are received and is 10.01 Page 2 approved by FORTE in the proper format, as established by FORTE. 6.2.1 Card Not Present Transactions. For card-based transactions in which the card is not present, AGENCY must obtain and include as part of the authorization request the 3 or 4 digit Validation Code and cardholder's billing address information. 6.3 AGENCY Account. In order to provide transaction processing services. FORTE may need to establish one or more service accounts on AGENCY's behalf or require AGENCY to establish a service account with a third part\, provider sub-contracting .with FORTE. 6.4 Limited-Acceptance Agency. If appropriately indicated on AGENCY's application attached hereto, AGENCY may be a Limited-Acceptance Agency, which means that AGENCY 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. FORTE and its associated credit card acquirer have no obligation other than those expressly provided under the Payment Association Operating Regulations and applicable law as they may relate to limited acceptance. AGENCY, and not FORTE or 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. 6.5 Bona Fide Sales. AGENCY shall only complete sales transactions produced as the direct result of bona fide sales made by AGENCY to cardholders. and is expressly prohibited front 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 AGENCY, or for purposes related to financing terrorist activities. 6.6 Setting Limits on Transaction Amount. AGENCI' may set a nlininuun 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). AGENCY may set a maximum transaction amount to accept a card that provides access to a credit account, under the following conditions: AGENCY is a i) department, agenc\' or instrumentally of Illy U.S. govermneiw II) corporation owned or controlled by the U.S. government; or iii) agency 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 diflerentiate between MasterCard, Visa, or any other acceptance brand. 6.7 Modifying Transactions. AGENCY shall regularly and promptly review all Transactions and shall immediateiv notify FORTE upon discovery of any and all discrepancies between the records of AGENCY compared with those provided by FORTE or AGENCY's bank, or with respect to any Transaction that AGENCY believes was made erroneously or without proper authorization. At AGE NCI 's request. FORTE will make commercially reasonable efforts to reverse, nlodifv, void or delete a Transaction after it has been submitted for settlement. All requests must be made in writing (electronic mail will be deemed as"in writing' for these purposes). signed or sent by an individual pre-authorized by AGENCY to make such requests. and delivered to FORTE. AGENCY agrees that FORTE will not be held responsible for any losses. directly or indirectly, incurred by AGENCY or other third parties as a result of FOR'rE's failure to accomplish the request before the Transaction has been processed through the applicable Payment Network. 6.8 Delay or Rejection of Transactions. FORTE may delay or reject any Transaction without prior notification to AGENCY which is improperly formatted, is untimely, is missing information, which play cause it to downgrade or if FORTE has reason to believe such Transaction is fraudulent or improperly authorized or for any reason permitted or required under the Rules or Regulations. FORTE shall have no liability to AGENCY by reason of the rejection of any such Transaction. 6.9 Returned Items. FORTE shall make available to AGENCY details related to the receipt of any Transaction that is returned unpaid or Transaction which is charged back and shall credit or charge such returned item to AGENCY's Settlement Account. 6.10 Chargebacks. AGENCY acknowledges and agrees that it is bound by the Rules and Regulations' of the Payment Associations with respect to any Chargeback. AGENCY understands that obtaining an authorimtion for any sale shall not constilute a guarantee of payment, and such sales can be returned or charged back to AGENCI' like anv other item hereunder. In the event a Transaction is charged back. for any reason, the amount of such ts.to.oi Page 3 Transaction will be deducted from AGENCY's designated Settlement Account or anv payment due to AGENCY. 6.11 Excessive Chargebacks. Using limits established by Associations as a standard for review. FORTE reserves the right to suspend and/or terminate AGENCY's access to the Services should AGENCY's chargeback ratio exceed allowable limits in any given period. FORTE will make reasonable efforts to provide AGENCY with notice and a time to cure its excessive chargebacks prior to suspending or terminating AGENCY's access to the Services. AGENCY acknowledges and expressly authorizes FORTE, in compliance with Payment Association Rules and Regulations, to provide to the Payment Associations and applicable regulatory bodies, AGENCY's name and contact information as well as transaction details should AGENCY's chargeback ratio exceed the allowable limits in any given period. 6.12 Resubmitting Transactions. AGENCY shall not re-submit any:Transaction unless it is returned as (i) Insufficient funds (R01); or(ii) Uncollected funds(R09)-. or unless a new authorization is obtained from Constituent. 6.I i Settlement. Settlement of AGENCY's funds for Transactions. less anv Chargebacks or Returns, to AGENCY's designated Settlement Account will occur within 72 hours of origination excluding weekends and US federal banking holidays. Settlement of-fransactions will occur via electronic funds transfer over the ACH Network. Upon receipt of Agency s sales data for card transactions through FORTE's Services. Acquirer will process AGENCY's sales data to facilitate the funds transfer between the various Payment Associations and AGENCY. After Acquirer receives credit for such sales data, Acquirer will fund AGENCY, either directly to the AGENCY-Owned Designated Account or through FORTE to an account designated by FORTE ("FORTE Designated Account"). at Acquirers sole option, for such card transactions. AGENCY agrees that the deposit of funds to the FORTE Designated Account shall discharge Acquirer of its settlement obligation to AGENCY, and that anv dispute regarding the receipt or amount of settlement shall be between FORTE and AGENCY. Acquirer will debit the FORTE Designated Account for funds owed to Acquirer as a result of the Services provided hereunder, unless an Agency-owned account is otherwise designated by AGENCY. Further. if a cardholder disputes it Transaction, if a Transaction is charged back for any reason, or if FORTE or Acquirer reasonably believe a Transaction is unauthorized or otherwise unacceptable. the amount of such Transaction may be charged back and debited from AGENCY if settled to an Agency-owned account or debited front the FORTE Designated Account if settled to that account. 6.14 Provisional and Final Payment. AGENCY, AGENCY's third party senders(if applicable), and/or AGENCY's agent(s) understand and agree that Entries nnay be transnnitted through the ACH Network, that payment of an Entry by the RDFI to the Receiver is provisional until receipt by the RDFI of final settlement for such Entrv, and that if such settlement is not received, then the RDFI will be entitled to it refund front the Receiver of the amount credited and AGENCY will not be deemed to have paid the Receiver the amount of the Entry. The rights and obligations of AGENCY concerting the Entry are governed by and construed in accordance with the laws of the state in which the processing ODFI is located, unless AGENCY and FORTE have agreed that the laws of anotherjurisdiction govern their rights and obligations. 6.1 5 Reporting. FORTE will make daily origination and deposit reports available to AGENCY on a 24/7 basis through the Internet-based FORTE platform. 7. TRANSACTION AUTFIORI7_ATION 7.1 Constituent Authorization. AGENCY shall obtain authorization front Constituent prior to requesting a Transaction to or from Constituent's account. 7.2 Retention. AGENCY shall retain proof of Constituent's authoriuuion for a period of not less than two (2) vears for standard Transactions and for it period of five(5)years for health- related Transactions from the authorization date or revocation of authorization date and shall provide such proof of authorization to FORTE upon request within five (5) business days of the request. 7.3 Revoked Authorization. AGENCY shall cease initiating Transactions to or from a Constituent's account immediately upon receipt of any actual or constructive notice of that Constituent's termination or revocation of authorization. AGENCY may re-initiate Transactions to or from a Constituent's account only upon receiving new authorization from the Constituent. t s.10.01 Pige 4 8. AGENCY PROHIBITIONS AGENCY must not i) require a cardholder to complete a postcard or similar device that includes the cardholder's account number, card expiration (late, signature, or any other card account data in plain view when mailed, it) add any tax to Transactions. unless applicable law expressly requires that AGENCY 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 AGENCY. v) disburse fiords in the form of cash unless AGENCY 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, FravelMoncy cards, or foreign currency, plus any commission or fee charged by AGENCY), or AGENCY is participating in a cash back service, Vi) submit anv Transaction receipt for a Transaction that was previously charged back to the Acquirer and subsequently returned to AGENCY, 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 that has been deemed uncollectable by AGENCY, or ix) submit a"Transaction that represents collection of a dishonored check. AGENCY further agrees that, under no circumstance, will AGENCY store cardholder data in violation of the Laws or the operating regulations of any Payment Association including but not limited to the storage of track-2 data. Neither AGENCY nor its agent shall retain or store magnetic-stripe data subsequent to the authorization of a sales Transaction. 9. AUTHORIZATION 9.1 ACH Authorization. AGENCY authorizes FORTE to electronically debit and credit AGENCY's designated bank account(s) for any amounts owed to or by AGENCY in accordance With the terms of this Agreement. 9.2 Third Party Service Provider. If AGENCY uses the Services through or in conjunction with a third party service provider that is not a party to this Agreement. AGENCY authorizes FORTE to provide Accela ("Partner') with its FORTE merchant account information and credentials. If applicable, AGENCY authorizes Partner to originate Transactions and receive the corresponding results on its behalf. 10. CONSTITUENT DISPUTES All disputes between AGENCY and its Constituent (s) relating to any Transaction processed under this Agreement will be settled by and between AGENCY and Constituent. AGENCY agrees that FORTE bears no responsibility or involvement in anv such dispute. 11. COMPLIANCE WITH LAWS, RULES AND REGULATIONS In performing its duties under this Agreement, each Party agrees to comply with all applicable Rules, Regulations and laws, including but not limited to all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), all Rules of any applicable Payment Associations, all requirenlcnts under the Payment Card Industry Data Security Standard (or similar applicable data security law, rule or regulation) including but not limited to the VISA Cardholder htformation Security Program, the MasterCard Site Data Protection Program, and anv other program or requirement that may be published and/or mandated by the Associations. Each Party agrees to cooperate and provide information reasonably requested by the other to facilitate its compliance with any applicable Law. Rule or Regulation. Additionally. should a Payment Association or regulatory body impose a fee or fine on AGENCY for any violation of the Rules or Laws by AGENCY, such fee or fine may be charged to FORTE as a pass-through to AGENCY. If any such fee or fine is charged to FORTE. AGENCY shall reimburse FORTE for any such fees or fines. 12. PRICING AND PAYMENT 12.1 FORTE will provide the Services in accordance with the fees listed on the Pricing Schedule(s) attached hereto or any amendments thereto. Pricing which utilizes an Absorbed Fee Model will be billed to the AGENCY monthiv in arrears and will automatically be debited from AGENCY's designated account via ACH Debit. M 10.01 Page 5 Pricing which utilizes a Service Fee Model will result in a processing fee being charged to the Constituent in the forni of a non-refundable service fee which is either(i) added to; or(ii)charged as it separate transaction to the Constituent at the time of payment. 12.2 Pricing which utilizes a flat service fee model arc calculated based on historical or estimated transactional amount activity by AGENCY. In the even) that experiential transaction activity varies significantly from the historical or estimated amounts, FORTE shall have the right to adjust the service fee in accordance to the experiential transaction activity. 12.j FORTE's pricing is subject to the underlying fees established by the Payment Associations and its service providers. As such. in the event FORTE experiences an increase in cost for any processing services utilized by AGENCY during any term of this Agreement, FORTE will pass through the increases with no additional markup to AGENCY. FORTE will provide AGENCY a minimum of thirty (30) days' notice of any change or adjustment in lees. 13. LIMITS OF LIABILITY 13.1 Neither Pam shall be liable to the other Party or to any third party for any special, consequential, incidental or punitive damages of any kind or nature incurred in relation to this Agreement. 'rhe amount of damages recoverable by either Pam' from the other will not exceed that Parrv's actual. direct damages and will be limited to the amount of the average monthly fees and charges paid by AGENCY for the Service for the immediate three (3) monthperiod prior to the event giving rise to the applicable claim. Neither Pam will be liable for failure to perform any of its obligations under this Agreement if such performance would result in it being in breach of any Law, Rule or requirement of any governmental authority. The provisions of this section will survive the termination of this Agreement. 13.2 FORTE shall not be held responsible for errors. acts or failures to act of others. including. and among other entities, banks, other processors, communications carriers or clearing houses through which Transactions may be originated or through which FORTE may receive or transmit information. and no such entity shall be deemed an agent of FORTE. la. REPRESENTATIONS AND WARRANTIES. 14.1 FORTE's Representations and Warranties. FORTE makes no representations or warranties concerning its services except as may be specifically authorized, in writing, or set out herein. 14.1.1 FORTE hereby warrants that its software solutions and services will perform in accordance with their published specifications in all material respects. 14.1.2 FORTE further warrants that in performing its obligations hereunder, it shall exercise due care and reasonable efforts to ensure that information originated by AGENCY is transmitted accurately. 14.2 AGENCI 's Representations and Warranties. AGENCY represents and warrants to FORTE that: 14.2.1 If applicable, with respect to all Transactions originated by FORTE on behalf of AGENCY that (i) each Transaction in all respects has been properly authorized by Receiver: (ii)each Transaction is for an amount agreed to by the Receiver and; (iii) AGENCY shall provide proof of authorization in compliance with applicable Rules for any Transaction to FORTE upon request within five (5) Business Banking Days. 14.2.2 AGENCY agrees to adhere to the warranties within the applicable Rules for each Transaction FORTE processes on AGE'NCY's behalf. 14.j Mutual Representations and Warranties. Each Party represents and warrants to the other that: 14.3.1 The execution of this Agreement does not violate arty applicable international, federal. state, or local law. Pavment Network rule or contract to which such Party is subject. 143.2 There are no actions. suits or proceedings existing or pending against or affecting it before any judicial or regulatory authority which would have a material adverse effect on its ability to perform its obligations hereunder. 14J.3 When executed and delivered, this Agreement will constitute it legal, valid. and binding obligation, enforceable in accordance with its terms. 18,10.01 Page 6 15. FORTE. SERVICE. POLICY. FORTE makes no representations or warranties concerning its services except as may be specifically authorized. in writing, or set out herein. AGENCY acknowledges and understands that FORTE Lines not warrant that the Services will be uninterrupted or error free and that FORTI may occasional]\, experience delays or outages due to disruptions that are not within FORTE`s control. Any such interruption shall not be considered a breach of the Agreement by FORTE. FORTE shall use its best efforts to remedy anv such interruption in service as quickly as possible. 16. FORCE MA.IEURE Neither Pariv shall be liable for. or be considered in breach of or default under the Agreement on account of am delay or failure to perform its obligations hereunder as a result of any causes or conditions that are beyond such Partv's reasonable control and that such Par, is unable to overcome through the exercise of cnnmmercial], reasonable diligence. If any force majeure event occurs. the affected Party shall give prompt written notice to the other Party and shall use all cornmercial]y reasonable efforts to minimize the impact of the event. 17. ASSIGNMENT The rights granted under this Agreement shall not be assigned b, either Party without the prior written consent of the other Partv, which shall not be unreasonably withheld. 18. CHOICE OF LAW This Agreement shall be governed by and construed in accordance with the internal laws of the State of California. Merchant hereby agrees that claims applicable to American Express may be resolved through arbitration as further described in the American Express Merchant Operating Guide. see Appendix D. Section 4 herein. 19. AMENDMENT Fxcept as otherwise provided for herein. the terns and conditions of this Agreement shall not be modified or amended except in writing, signed b, the parties hereto and specifically referring to this Agreement. 20. PUBLICITY Neither Pam shall use the other Parw's nanne. logo or service marks in conjunction with a press release or advertisement without first obtaining written approval. 21. NOTICE Any notice required to be given by either Partv hereunder. shall be in writing and delivered personally to the other designated Party, or sent by any connmercially reasonable means of receiptcd delivery, addressed, to that Part, at the address most reccntfy provided in writing. Either Pam may change the address to which notice is to be sent by written notice to the other tinder any provision of this paragraph. Notices to FORTE: CSG Forte Pavments. Inc. Notices to AGENCY: 500 W. Bethanv Drive City of Huntington Beach Suite 4200 Finance Department Allen. TX 75013 P.O. Box 190 Attn: General Counsel Huntington Beach, CA Attn: Chief Financial Officer 22. HEADINGS The headings contained in this Agreement are for convenience of reference only and shall not affect the meaning of any provision of this Agreement. 18.10.01 Page 7 23. SEVERABILITY Should any term,clause or provision herein be found invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term,clause or provision and such invalid term, clause or provision shall be construed to most closely reflect the original intent of the patties. 24. ENTIRE AGREEMENT;WAIVER; COUNTERPARTS This Agreement constitute the entire understanding of the Parties, and revoke and supersede al; prior agreements between the Parties and are intended as a final expression of their agreement. Either Party's waiver of any breach of any provision of this Agreement shall not be deemed a waiver of any subsequent breach of same or other provision. This Agreement may be executed in two or more counterparts,each of which shall be deemed an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF,the undersigned, being duly authorized thereto by their respective organizations,have executed this Agreement as of the date set forth below. FORTE: 1 AGENCY: By. By: "Lx- -15AL4;rAn1 Name: Jeff Ku Nam �_ Title: President Title: APPROVED AS TO FORM ey: ! CHAEL E.GATES CITY ATTORNEY CRY OF HUNTiNGTOi+BEACH COUNTERPART 191001 Pw+ 23. SEVERABILITY Should any term, clause or provision herein be found invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term,clause or provision and such invalid term,clause or provision shall be construed to most closely reflect the original intent of the parties. 24. ENTIRE AGREEMENT; WAIVER; COUNTERPARTS This Agreement constitute the entire understanding of the Parties,and revoke and supersede all prior agreements between the Parties and are intended as a final expression of their agreement. Either Parry's waiver of any breach of any provision of this Agreement shall not be deemed a waiver of any subsequent breach of same or other provision. This Agreement may be executed in two or more counterparts,each of which shall be deemed an original and all of which together shall constitute one instrument. IN WITNESS WHEREOF,the undersigned, being duly authorized thereto by their respective organizations, have executed this Agreement as of the date set forth below. FORTE: AGENCY: By: By: ,V e a .r, t owe, Name: Name Title: Title: r l,a,F 6 ,4�r,.w oK�GC2 APPROVED AS TO FORM By: ICHAEL E. GATES CrTY ATTORNEY CRY OF HUNTINGTON BEACH RK01Ve and Mc Q� "`r14r C14y Clerk COUNTERPART ISJouI Page x APPENDIX A DEFINITIONS ACH Netwrork—Automated Clearing House its internal administrative, billing and accounting Network is a batch processing, store-and- systems. customer and vendor lists and forward system that accunmlatcs and distributes infomtation, employee personnel information and ACI I transactions that are received from ODFI policies and procedures, information regarding the (defined below) and are forwarded to the diSCIQ51ng Party's products and services that is not specified RDFI (defined below) according to the generally available to the public. specific schedules established by the participants. Credit Entry (or "Entry)—An ACH/FFT Transaction that is intended to deposit funds into Acquirer—A sponsoring financial institution or a Receiver's (defined below)account which has payment processor that enters into an agreement been withdrawn front Merchant's Settlement which enables merchants or their Agent(s) to Account (defined below). submit Transactions to it payment network. Debit Entry (or "Entry")— An ACIi/EFT Affiliate—A business entity effectively Transaction that is intended to withdraw funds controlling or controlled by another or from it Receiver's account for deposit into associated with others under common ownership Merchant's Settlement Account (defined below). or control. Laws—All international, national. regional and Agent Any director, officer, employee, local regulations or laws which are applicable to represcntative. affiliate, third-pimy vendor or the services provided herein. any other person acting on behalf of the Merchant with the actual, implied or apparent NACHA —National Automated Clearing House authorit_V of Merchant. Association responsible for establishing. revising and enforcing the Operating Rules for Business Banking Day— Monday through the US ACH Network. Friday excluding banking holidays. ODFI —Originating Depository Financial Chargeback—A Transaction that is rejected by Institution is the financial institution that the owner of the account debited or charged receives AC I Transactions from Merchant because it dispute exists between the Originator through FORTH and then forwards these of the Transaction (typically a Merchant) and the Transactions (defined below) to the ACH account owvner. Network. Confidential Information - Confidential Originator— A �Merchant who has contracted Information may include infortation regarding all with FORTE to initiate ACH entries, on their of the computer sollwware and technologies, behalf, to the ACH Network. systems, structures. architectures, processes, formulae, compositions, improvements, devices. Payment Association —Any entity governing a know-how, inventions. discoveries, concepts, payment network, including but not limited to ideas,designs. methods, and information and VISA. M/C, Discover. American Express. databases developed, acquired,owned, produced NACHA. CPA. or practiced at any time by a Pam'or any affiliate thereof, including software programs and PCI-DSS— System security measures documentation licensed by third parties to the established by the various credit card companies, disclosing Party, any business or financial known as the Payment Card Indusin, Data information directly or indirectly related to the Security Standards. disclosing Party's compani(s)or investments or i s.1 o.ot Paec 9 RDFI — Receiving Depository Financial Settlement Account— An account established Institution is the financial illStitution that and maintained by Merchant Nvith a financial receives the ACFI Transactions from the ODFI institution through which the following may through the ACH Network and posts these occur; (a) deposit of funds for Debit Entries, (b) Transactions to the accounts of Receivers the extractions of funds for Credit Entries. (defined below). reserve funds or fee obligations unless otherwise agreed to by the parties. Receiver—An entity or individual consumer that has all established account with a card issuer or Settlement Entry—A Debit or Credit Entry to financial institution upon which a Transaction is Merchant's Settlement Account which or may be acted upon. corresponds to the net amount owed Merchant by FORTE at the end of each Business Banking Reserve—A specific amount of money that is Day. held in your Merchant account to be used by FORTE to offset amounts owed to FORTE for Transactions—Any transfer of data or Services provided, such as returned items, information to FORTE in a format pre-approved chamebacks. fees/fines, billing or other by FORTE, including but not limited to Merchant obligations to PORTS that FORTE is payment, verification and authentication items. unable to collect from lvIerc:hant. Users - All individuals who access a FORTE Returned Entries— Any Transaction that is not website or utilize any portion of the FORTE able to be completed successfulk,and is Services on behalf of Merchant directly or returned/rcjccied back to the Originator. through software that accesses the FORTE systems through Merchant's systems. by using Rules—The operational rules, policies and Merchant's access credentials or any other procedures established by each applicable access reasonably presumed to be on behalf of Payment Association to govern all transactions Merchant. and parties that participate in the associated payment network. i s.10.01 Page 10 APPENDIX 13 ACCOUN'I' VERIFICATION AND AUTHENTICATION SERVICES 1. Representation by Agency. Each request for data through the verification and authentication services shall constitute a representation, warranty and certification by Agency that the data(i) shall be used and disclosed only in accordance with the teens of the Agreement, and in accordance with any applicable Rules or Laws; and (ii) shall be used solely for the intended use as stated by Agency on the application and that use is in compliance with the permissible uses under the Fair Credit Reporting Act ("FCRA")as provided in the FCRA Requirements Addendum located at hitp://w wv.forte.net/fair-credit-reporting-act; (iii) Agency will follow proper procedures for adverse action notification to its Constituents, as provided by the FCRA Requirements Addendum: and (iv) Agency acknowledges it has implemented security measures to prohibit the unauthorized access to the information provided. 2. Use of Services. 2.1 AGENCY SHALL USE THE VERIFICATION SERVICES ONLY IN CONNECTION WITH PAYMENTS PRESENTED TO AGENCY BY ITS CONSTITUENTS IN EXCHANGE FOR GOODS OR SERVICES. AGENCY SHALL. NOT RESELL THE VERIFICATION DATA OR SERVICES TO ANY THIRD PARTIES. 22 Agency understands and agrees that it cannot decline services to a consumer or customer after receiving an approval result from FORTE on a verification inquiry unless Agency is declining based on other grounds and/or information. Further, if Agency does decline services to a FORTE approved consumer or customer based on alternate information. Agency shall not provide FORTE's contact information as recourse for the consumer to pursue a dispute of the result under FCRA Adverse Action requirements. 2.3 Agency shall provide to FORTE, as part of a verification inquiry, the accurate amount for each transaction Agency wants to verifv. 3. Retention of Data. Agency acknowledges and agrees that it shall not retain, store, compile or aggregate the results of verification or authentication inquiries received from FORTE except as required by applicable law or to perform its obligations under this Agreement. 18.10.01 Page I I APPENDIX C ACCOUNT UPDATER SERVICES I. Description of Services. Participating Visa/Master-Card Issuers submit their account changes to the Account Updater Database. On a monthly basis, FORTE will compare all of AGENCY's recurring tokenized transactions against the Account Updater Database. FORTE- will then update the tokenized card information on file with updated account information. 2. Agency Requirements for Account Updater Participation. a. AGENCY must be properly established and registered in the United States. b. AGENCY must not have been disqualified from participating in the Visa, MasterCard, American Express, or Discover programs. c. AGENCY must be in compliance with all Card Association Operating Regulations. d. AGENCY must submit inquiries only for those accounts with which the merchant has an ongoing customer relationship and customer's authority to submit such payments. e. AGENCY may not request authorization on accounts that have returned "Contact Cardholder' or"Closed." f. AGENCY must not submit inquiries on behalf of any other entity. L. AGENCY assumes all risk associated with the use of the Account Updater Service. FORTE shall have no liabilitv whatsoever to AGENCY for any liability associated with the Account Updater Service, including but not limited to the accuracy or completeness of the information provided via the Account Updater Service. 18.10.01 Page 12 APPENDIX 1) AMERICAN EXPRESS CARD ACCEPTANCE I. Merchant hereby acknowledges and agrees that for purposes of acceptance of American Express, the American Express Merchant Operating Guide and any amendments thereto (the "Operating Guide") is hereby incorporated by reference into this Agreement and can be found at www.americanexpress.cons/merchantopguide. All capitalized terns found in this section shall have the attributed meaning from the Operating Guide. 2. Merchant hereby acknowledges and agrees that it is not it party to any agreement between FORTE and American Express. 3. Merchant hereby authorizes FORTE and/or Acquirer to submit American Express transactions to, and receive settlement front. American Express on behalf of Merchant. Merchant must accept the American Express card as payment for goods and services (other than those goods and services prohibited under the Operating Guide) sold, or(if applicable) for charitable contributions made. at all of its establishments, except as express]\, permitted by applicable Law. Merchant is jointly and severally liable for the obligations of Merchant's establishments under the Agreement. For the avoidance of doubt, "cardholder' as used in this Agreement shall include Cardmembers as defined in the Operating Guide. 4. Merchant hereby acknowledges and agrees that(i) FORTE or Acquirer may disclose American Express Transaction Data (which for purposes of this section shall have the same definition as-Transaction Data" in the Operating Guide), Merchant Data (as defined below). and other information about Merchant to American Express, (ii) American Express may use such information to perform its responsibilities in connection with the American Express Program, promote the American Express Network, perform analytics and create reports, and for any other lawful business purpose. including marketing purposes, and (iii) American Express may use the information obtained in this application at the time of setup to screen and/or monitor Merchant in connection with American Express Card (the "Card") marketing and administrative purposes. If Merchant has provided a %viceless phone number in connection with this Agreement, Merchant hereby agrees that it may be contacted at that number and the communications sent may include autodialed text messages or automated prerecorded calls. If Merchant has provided a fax number, Merchant hereby agrees that it may be sent fax communications. To opt out of American Express-related marketing communications, Merchant may contact FORTE customer service as described in this Agreement. For purposes of this section. "Merchant Data" means names, postal and email addresses. tax ID numbers, names and social security numbers of the authorized signer of Merchant and similar identifying information about Merchant. For clarification. Merchant Data does not include American Express Transaction Data. 5. Merchant will adhere to the following website information display guidelines in the event Merchant has a website and/or operates an e-commerce business. Merchant's websitc must display the following: • An accurate description or the goods/services offered, including the currency type for the Transaction (e.g., U.S. Dollars). Note: Transaction currency must be in U.S. Dollars. • Merchant's physical address in the U.S. • An email address or telephone number for customer service disputes. • Return/refund policy. • A description of Merchant's delivery policy (e.g., no overnight delivery). • A description of Merchant's security practices (e.g.. information highlighting security practices Merchant uses to secure Transactions on its systems. including Transactions conducted on the Internet). • A statement of known export restrictions. tariffs, and any other regulations. 18.10.01 Page 13 • A privacy statement regarding the type of personal information collected and how the information is used. Additional) , Merchant must provide to customers the option to decline being included in marketing campaigns or having their personal information included on lists sold to third parties. 6. Merchant hereby agrees that, in the event that Merchant becomes a High Charge Volume Merchant (as defined below). Merchant will be converted from the American Express Program to a direct American Express Card acceptance relationship with American Express, and upon such conversion, (i) Merchant will be bound by American Express' then-current card acceptance agreement, and (ii) American Express will set pricing and other fees payable by Merchant for American Express Card acceptance. "High Charge Volume Merchant" for purposes of this section means an American Express Program Merchant with either(i) greater than $1,000,000 in American Express charge volume in a rolling twelve (12) month period or(ii) greater than $1W 000 in American Express charge volume in any three (3) consecutive months. For clarification, if Merchant has multiple establishments, the American Express charge volume from all establishments shall be summed together when determining whether Merchant has exceeded the thresholds above. 7. Except as expressly permitted by applicable Law, Merchant must not: (a) indicate or imply that Merchant prefers, directly or indirectly, any Other Payment Products over the Card, (b)try to dissuade Cardntentbers front using the Card, (c) criticize or mischaracterize the Card or any of American Express' services or programs, (d) try to persuade or prompt Cardmembers to use any Other Payment Products or any other method of payment (e.g.. payment by check), (e) impose any restrictions, conditions, disadvantages, or fees when the Card is accepted that are not imposed equally on all other payment products, except for electronic funds transfer, cash or check. (n suggest or require Cardmembers to waive their right to dispute any Transaction. (g) engage in activities that harm American Express' business or the American Express Brand (or both), (h) promote any Other Payment Products (except, if applicable. Merchant's own private label card that it issues for use solely at its Establishments) more actively than Merchant promotes the Card, or(i) convert the currency of the original sale Transaction to another currency when requesting Authorization or submitting Transactions (or both). 8. Merchant may offer discounts or in-kind incentives front its regular prices for payments in cash, ACH funds transfer, check, debit card, or credit/charge card, provided that (to the extent required by applicable Law): (i) Merchant clearly and conspicuously discloses the terms of the discount ar in-kind incentive to its customers, (ii) the discount or in-kind incentive is offered to all of Merchant's prospective customers, zinc] (iii)the discount or in-kind incentive does not differentiate on the basis of the Issuer or. except as expressly permitted by applicable state statute, payment card network (e.g., Visa, MasterCard. Discover. JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this paragraph will not constihrte a violation of the provisions set forth Section 3.2 of the Operating Guide. 9. Whenever payment methods are communicated to customers. or when customers ask what payments are accepted. Merchant must indicate its acceptance of the Card and display American Express' Marks (including any Card application forms provided to Merchant) as prominently and in the saute manner as anv Other Ilavment Products. Merchant nnlst not use American Express' Marks in any way that injures or diminishes the goodwill associated with the American Express Mark, nor in any way(without American Express' prior written consent) indicate that American Express endorses Merchant's goods or services. Merchant shall use the American Express brand and marks in accordance with the requirements set forth in the Operating Guide and shall remove the American Express brand and marks from Merchant's website and wherever else they are displayed upon termination Merchant's acceptance of American Express cards. 10. Anv and all Cardmember Information is confidential and the sole property of the Issuer, American I R.10.01 Page 14 Express or its Affiliates. Except as otherwise specified, Merchant must not disclose Cardntember Information, nor use nor store it, other than to facilitate Transactions in accordance with this Agreement. For more information, refer to the Operating Guidc. Section 42. "Completing it Transaction at the Point of Sale" and Chapter 8. "Protecting Cardmcmber Information'. 11. Merchant shall not assign to any third party any American Express-related payments due to it Under this Agreement, and all indebtedness arising from American Express Charges (as defined below) will be for bona fide sales of goods and services (or both) at its establishments (as defined below) and free of liens, claims, and encumbrances other than ordinary sales taxes. provided, however, that Merchant may sell and assign future American Express transaction receivables to FORTE, its affiliated entities and/or any other cash advance funding source that partners with FORTE or its affiliated entities, without consent of American Express. 11 Merchant hereby agrees that American Express shall have third party beneficiary rights. but not obligations, to enforce this Agreement as against Merchant to the extent applicable to American Express processing. Merchant understands and agrees that it shall have no third party beneficiary rights under any agreement between FORTE and American Express and/or Acquirer. Merchant shall maintain refund policies for purchases on the American Express card that are at least as favorable as its refund policy for purchases on any other payment product. Merchant will disclose any such refund policy to Cardmembers at the time of' purchase and in compliance with the Operating Guide and all applicable Laws. Merchant's termination of American Express Card acceptance shall have no direct or indirect effect on Merchant's rights to accept other card brands. To terminate American Express acceptance. Merchant may contact FORTE customer service as described in this Agreement. 13. Without limiting any other rights provided herein, FORTE and/or Acquirer shall have the right to immediately terminate Merchant's acceptance of American Express cards upon request of American Express. Merchant may not bill or collect from any Cardmcmber for any purchase or payment on the Card unless a chargeback has been exercised. Merchant has fully paid for such charge, and it otherwise has the right to do so. Merchant will comply with all procedural requirements relating to chargebacks, as provided in the Operating Guide, Chapter I I. 14. American Express Liability. SPONSORED NIFRCHANT ACKNOWLEDGES AND AGREES THAT IN NO EVENT Sl IALL AMERICAN EXPRESS. ITS AFFFILIATES. AGENTS. SUCCESSORS. OR ASSIGNS BE- LIABLE TO SPONSORED MERCHANT FOR ANN' DAMAGES. LOSSES, OR COSTS INCURRED, INCLUDING INCIDENTAL. INDIRECT, SPECULATIVE, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANN' KIND (WI-IETI-IER 13ASED ON CONTRACT. TORT. INCLUDING NEGLIGENCE, STRICT LIABILITY. FRAUD. OR OTHERWISE, OR STATUTES, REGULATIONS. OR ANY O"fI-IER THEORY), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT. 13.10.01 Page I> forte PRICING FEE SCHEDULE City of Hunting ton Beach, CA Fonc Payment Systems is proud to provide a robust processing platform and flexible pricing strategics: • Scn ice Fvc \lmlcl—in a service Icc model approach, the citizen pity,a sen-ice fee for processing their transaction. Your office absorbs no cost. • Abv,rbed Modtl -credit card/debit card Merchant Sen-ices, Electronic Check Services and the Secure Gatcwm are absorbed be hour office. Srni(c ((lomcnicncc) Fcc 11riciog Opt it at: MasterCard, Visit, Discover and American Express cards 750/4 of the payment amount with a minimum fee of$1,95 based upon Volumc- Electronic check—online WEB payments Includes Forte Verification for known accounts. eCheck Transaction Tiers Fees Frequency $0.00 to$50.000.00 S 1.75 w/Verification Pcr Transaction 550,000.01 to 575,000.00 53.00 w/Verification Pcr Trnnsaetion 575,000.01 to S I00,000.00 S6.00 w/Verification Pcr Transaction $100,000.01 to S150A00.00 510.00 w/Verifirntion Per'Tmnsacdon $150,000.01 -+ S250,000.0(1 SIS.170w/Verification Per Transaction Optir.nal - Absurbcd Pricin. Optimu Emerging Market and Public-Sector Rate Structure Processing Costs: Fees Frequency Visa, MasterCard, Discover Pass"Ihm pricing + Per Transit 50.15+ .156 nS American Express 'Pass'lltm pricing+ Pcr"Transaction 50.12 Account Updater (Optional) $0.35 Per Transaction Chargeback Fcc S5.(N) Per Chargeback Batch Fee 50.00 No Charge -Wwvcd Gatewac Fee $0.00 No Charge - Included ACI-1 Fee-debits/credits $0.50 with Forte Verifv Pcr Transaction ACI-i Return Fee $2,00 Per Return Monthly Fee 55.00 Each Month per merchant account tiatew']%' I111,V Pncim" Upllan. Fee Description Fee Frequency Forte G:ue :n- Fee 50.I l Per Transaction hr Monthiv Gatewav Fee — S24.9ih Each Month Per MID -Pass 111111 pricing incluCles the direct interchange dues,assessments and all other fees that are charged directly from the associations. Forte Payment Systems believes in transparent pricing, nhenning that we utilize a Pass-'I/jm P/rrt pricing model. Interchange pass tint pricing is a lonn of credit card processing that allows the actual cost of the processing (-interchange fees& assessments) to be passed directly through to pour of ice -Ilse advantage of dais pricing strategy is that it is transparent and, in most instances,provides the lowest processing costs. Forte's fees include: 'Tonal volume processed multiplied by bets Local "" of transactions processed by per item fee F(IL111)n1Cnt and Senitr pricing: 'I he following table reflects our Fquipment and?ervice (.Hferings Standard Product and Optional Description Fees and Cost of Service Pricing Equipment Veri Fone Vx520 ENIV Temtinal 5299.00 per reader plus shipping i VeriPooc Vv20 Flybrid Cable Used for I lybrid Load Temtinals $2495 Requirement On-line Reporting Tools All Channels(IN 1'.IVR,pC1ti) Unlinmed Users S0.(M) Set-Up Pee - -_— Confgntrui( n, Implementation,Training WAM-I) Select pricing option desired: Absoncud Prit'in.- Settiicr Pea Pricing Geiwwa% O dv Pricing; *Required Merchant Signo:tture: Date 71102,/