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Home My WebLink About02/16/2016 05G Integrated Software Agreements with Invoice Cloud and Sage Solutions 10 I tit 4 0 111 /,0 11111111 p 141 101 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 5.G. For Meeting of: February 16, 2016 ITEM TITLE: Resolution authorizing a third party integrated software agreement with Invoice Cloud and Sage Solutions for Merchant Services payment processing SUBMITTED BY: Cindy Epperson, Director of Finance & Budget James Dean, Utility Services Manager Tara Lewis, Financial Services Manager SUMMARY EXPLANATION: On June 2, 2015, the City Council approved Resolution R- 2015 -073 authorizing a contract between the City of Yakima and N. Harris Computer Corporation for the provision of a Utility Customer Information Software System (CIS). Cayenta, a division of N. Harris Computer Corporation is currently onsite working with City staff to implement the CIS software. The targeted date to "go live" on the new system is July 1, 2016. The attached Progress Update on the Cayenta CIS project briefly describes the status of the Project. Integral to the project is the provision of Merchant Services — acceptance of credit and debit card payments as well as Virtual Merchant Services — online payment acceptance. Cayenta does not provide banking services, but has several "partners" who have programmed their banking software to integrate seamlessly with the Cayenta CIS software. Cayenta recommended that the City contract with Invoice Cloud based on our specific needs and desire to provide the best online payment solution to our customers. City staff have evaluated the companies that partner with Cayenta and found that we concur with their recommendation. Invoice Cloud was determined to be the solution to best serve the customers of the City of Yakima and comply with the unique banking requirements as they apply to public agencies in the State of Washington. Further description of Invoice Cloud's services and pricing is included in the attached Progress Update. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Public Trust and Accountability APPROVED FOR SUBMITTAL: „,/n Interim City Manager oir STAFF RECOMMENDATION: Authorize Interim City Manager to execute agreements BOARD/COMMITTEE RECOMMENDATION: ATTACHMENTS: Description Upload Date Type D IProgress CIS Project 2[1/2016 Exhibit D Resoll ution 2[1/2016 Rasa utlion D AgreehrenHrudlice Cloud 2[1/2.016 Contract D Agreement-Sago Merchant Processing 2[1/2.016 Contract D Agreement- Sago \At a Merclhant 2[1/2016 Contract Progress Update February 16, 2016 The implementation of Cayenta's Customer Information System (CIS) software has been progressing according to schedule and with no cost overruns. The projected date to "go live" on the new system is the weekend of July 1 -4. The holiday is an opportune time to implement a new system giving staff time to test live data and be ready for customers at the beginning of a new month. Due to limitations of our old software, conversion must occur at the beginning of a month. The old system has no way to capture a complete and accurate set of data except at month end. The long weekend will also minimize the impact to customers by minimizing the down time primarily to off hours. Change orders thus far have been few and have been at no cost. Testing is proceeding according to schedule. Staff has started pass 1 of integrated testing and will begin detailed integrated testing pass 2 on March 2. We will also begin testing the integration to the financial system as it will be upgraded as part of this project. The upgrade will bring enhanced billing and receivable functionality to the Finance system. It will also integrate and automate the billing, payment and receivables system to the Financial Management System. As part of the integration to the Financial Management System, we will need to test the new Customer Self Service (CSS) portal where our Utility customers (and other miscellaneous receivable customers) can manage their own accounts through the City's website. Our utility customers will be able to review their account(s) including current account balance, prior charges and payments made, changes made to their services and make online payments or request to be set up on automated payments. They will also be able to reprint their bills, generate certain service orders to start or stop new services such as a larger garbage cart. These services orders will be reviewed by staff as they come in and then turned into work orders to send a crew as appropriate. Other City customers such as tenants at the Airport or those who are part of the Downtown Yakima Business Improvement District will be able to access and pay their charges through the same CSS portal. Currently they have no real online options to view or pay these charges. The online payment system we currently use at the City is not integrated to the current Financial software. Cayenta has recommended that the City contract with Invoice Cloud because their online payment and banking software is already integrated to Cayenta's software. This will free up staff time to devote to customer service instead of rekeying online payments that were deposited to the bank into the software each day. The software will automate this process and provide detailed information on incoming payments to assist in bank account reconciliation by the Finance Division. To do this process without integrated payment software would require intense oversight, processing and regular programming changes to comply with federal banking regulations by our Information Technology Services division which would in turn require additional staff. The volume based monthly fees of $1,100 will turn this responsibility and the associated risk over to the contractors, Invoice Cloud and Sage Solutions resulting in lower overall costs and risk to the City. Sage Solutions is the actual Merchant Services provider that will process the payments and deposit them in the City's existing bank account. Invoice Cloud provides the integration to Cayenta. The bulk of the cost of the Merchant Services is in the Interchange fees that are charged by Visa, MasterCard and Discover. Those fees are separately listed and are the same as we are currently paying under our existing agreement for Merchant Services with US Bank/Elavon. (That agreement will not be terminated due to other credit and debit card payment services around the City that will not be using the Cayenta CIS software such as Licenses and Permit, Parks, Police and the Court.) The Interchange fee portion of the contract will not increase overall banking fees at the City. It is just a change to a new intermediary providing the City access to the Interchange network so we can receive credit card payments. The Interchange fees that will be associated with the contract will be approximately $75,000 per year with about 60% being Visa, 35% Mastercard and 5% Discover. Again, since these are pass through costs, they are not additional costs, but just a change in the contractor providing access to the Interchange services we already use. The Interchange fees charged through the US Bank/Elavon contract will decrease by the same amount because the fees are all volume based charges. Although the Invoice Cloud contract falls below the threshold for City Council approval, the Interchange fee portion of the related Sage agreement puts its contract into that category. Both contracts are attached here for review and approval. In summary, the project is progressing quite well. Customer service will be significantly enhanced by the new system, staff will operate more efficiently and controls over payment processing will be enhanced and updated to comply with industry standards. Approval of the Invoice Cloud and Sage agreements is critical to keeping the project on track. The costs associated with the agreements result in increased benefits to our customers and increased efficiency of payment operations as well as reduction of risk in the credit card payment industry. No increase in Utility fees is expected due to the contracts. Since the cost increase is relatively small and spread over all the utilities, it can be easily absorbed in their operating costs. RESOLUTION NO. R -2016- A RESOLUTION authorizing the Interim City Manager of the City of Yakima to execute agreements with Invoice Cloud and Sage Solutions. WHEREAS, the City has entered into an agreement with Cayenta, a division of N. Harris Computer Corporation for the implementation of Customer Information System (CIS) software; and WHEREAS, the project implementation has proceeded to the point of determining Merchant Services (credit card) payment processing integration; and WHEREAS, Invoice Cloud is a Cayenta partner whose software is already integrated to Cayenta's CIS software that is being implemented by the City; and WHEREAS, Sage Solutions is the Merchant Services payment processor associated with Invoice Cloud that provides access to the credit card Interchange networks; and WHEREAS, the City Council deems it to be in the best interest of the Citizens of Yakima to contract with Invoice Cloud and Sage Solutions, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: That the Interim City Manager is hereby authorized and directed to execute the attached agreements between the City of Yakima and Invoice Cloud and Sage Solutions for the purpose of accepting payments through the Cayenta Customer Self Service portal as part of the implementation of the Cayenta Customer Information System (CIS) software. ADOPTED BY THE CITY COUNCIL this 16 day of February, 2016. ATTEST: Avina Gutierrez, Mayor Sonya Claar Tee, City Clerk g , f r tg 14 7''s Carlyn Altheide ,, r �� ' �� 'i i' ® EBPP ED Cloud Store E3 Cloud Pay ® IVR ►� OBD El Kiosk : ® Visa /MasterCard /Discover ❑ American Express .0 ACH /EFT A Ownership Type: : Government Biller Contacts Legal Name: City of Yakima ' James Dean, Utility Services Manager Address 1: 129 N 2nd St Phone Number: 509- 576 -6615 Ext. .._ ._. Address 2: Email Address: _. ...__...._........._......._.._ .,..... _.__.__......_._.......... _, ....,..a,.m.._...._...,...._� james.dean @yakimawa.gov Cit .,�� ili i State: I W � Zip. ; �t �s� � r �� ... -__ w,___. .�., .,� �..�_ 98901 4 i same,. ame as, above Phone# 509-575-6070 Fax #: 509-5766364 Phone Number: Ext. h ttps:!lwww.yakimawa.go,..... ,, .o.,..... M. Website URL; Email Address: ... . ,mµ , . Business Open Date: 1886 , Same as above , Federal Tax ID #: on file in Finance Division Phone Number: Ext.' Note; Federal IL) and Legal Name must match on all documents. Email Address: Signatory Contact: .yµ �.v._, _._ _.... 4 ., ,....�.�...,,,..,,v. ,,.w,,.w ...,,:�,.,... ,.. w.. m..� . ,,, ., � • 4i1ARA6 W g ry Jeff Cutter lial ; Interim City Manager Phone Number: 509- 575 -6040 Ili Email Address: Jeff.cutter @yakimawa.gov 06 _ _ . ..n. ' . _.. .a.. _,.. -.,. . .' 41 4 4 ' �.. ' g C h ... iA A 4 . -.__....., ie, i . w..m_,.. .. ,a. efiad .�.,.... m nn . '.... e '' ' ' "' . m_ _n. ,_ ''' ' w . , James Dean is the Project Manager for Utility Billing. Tara Lewis is the City's Finance Manager and will be Project Manager for any /all other City Departments, 509 -576 -6639 tara.iewis@yakimawa.gov I New Biller Implementation: 0.00 Paperless Presentment: 0.25 Per Item (includes 3 email notifications) Biller Portal Access: 100.00 Monthly IC Payment - Credit Card: 0.0q ap ,4 Per Item Additional User(s) 0.00 Monthly Per User IC Payment - EFT /ACH: 0.00 Per Item Online Bank Direct Access: 0.00 ,,,hour,. J rr it Online Bank Direct: 0.25 Per Item Go Mobile Gateway 0.00 Choo .I "mRene Harris Go Mobile: 0 00 Per Item . Invoice Presentment: 0.00 Monthly EFT /ACH Reject: 1 15.00 Per Item Ch arge Back: t " © 20 N � Name of Checking Account ..w. .. .._ „k..,, , t, t : :... ._t. ._._.:__ w _. Unt (As It appears on check or Bank Letter): i Bank information on file in Finance Division Bank j Address: Phone: Name: Depository Routing #: Account #: Your Invoice •a ment collections will be electronically deposited into this acco unt. Fees Routing #: Account #: Invoice and •a ment •rocessin• tees will be electronicall deducted from this account. � ~ � ,~�^ � �� k ��*�� ° ~ � &� Order � m��mm�� Form ,~.,, CERTIFICATION AND AGREEMENT A. By signing below, the Biller hereby authorizes Invoice Cloud, Inc. ("Invoice Cloud") to initiate and execute debit/credit entries to its checking/deposit account(s) indicated above at the depository financial institution(s) named above and to debit/credit the same such account(s). The Biller acknowledges that the origination of ACH transactions to its account(s) must comply with the provisions of U.S. law. This authority is to remain in full force and effect until (i) Invoice Cloud has received written notification (by electronic or U.S. mail) from the Biller of its revocation in such time and manner as to allow Invoice Cloud a reasonable opporiunity to act on it, but not less than 10 business days' nohce;ond (ii) all obligations of the Biller to Invoice Cloud that have arisen under this Agreement and all other agreements have been paid in full. The Biller must also notify Invoice Cloud, in writing, (by electronic or U.S. mail) when a change in account number(s) or bank has occurred at which time this authorization shall apply to such new/changed account. This notification must be received within 10 business days of change. A fee will be charged for any returned ACH debits. B. By signing below, the Biller named: (1) has read, agreed to, and acknowledges receipt ot the terms and conditions of the Biller Agreement, attached herefo, as well as the terms and conditions at www,invoicecloud.com/termsandconditions, all of which is incorporated herein by reference (2) certifies to Invoice Cloud that he/she is authorized to sign this Biller Order Form; (3) certifies that all information and documents submitted in connection with this Order Form are true and complete; (4) authorizes Invoice Cloud or its agent to verify any of the information given, including credit references, and to obtain credit; (5) agrees to pay the Monthly Access Fee through the last day of the month following the effective date of termination as provided in the Billing Agreement; (6) agrees that Biller and each transaction submitted will be bound by the Biller Order Form and the Biller Agreement in its entirety; (7) agrees that Biller will submit transactions only in accordance with the information in this Biller Order Form and Biller Agreement and will immediately inform Invoice Cloud, by email (contracts@invoicecloud.com) if any information in this Biller Order Form changes. The terms and conditions and this Biller Order Form, the Biller Agreement and the terms and cnnditionsotv+mw.invcicec|pud.com/to,msondcongitiunsconsti1ote the entire integrated Biller Agreement by and between Biller and Invoice Cloud. If any provision of this agreement hereunder is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable pmvidon(s), with all other provisions remaining in full force and effect. and (8) the Biller agrees and understands that outstanding sums due and owing to Invoice Cloud., will be charged daily or monthly and debited from its current depository account. Non-sufficient funds for these debits are grounds for a change in fees or termination of this Agreement. In the event of non-payment of any sums due, Invoice Cloud reserves the right to withdraw such sums from the current depository account at any time to ensure payment of the same. C. By signing below, the Biller hereby gives permission to Invoice Cloud to access his / her credit history via Trans Union, Equifax, or other credit- reporting agency D. The Biller Order Form and the Biller Agreement will become effective only when counter-signed by Invoice Cloud and upon execution by the Biller of such third party agreement required by Invoice Cloud to permit use of the payment function of the Service. . In WITNESS WHEREOF, the parties hereto have executed this Agreement as of this da ' Accepted by biller: Accepted by Invoice Cloud: U � A XI Corporate Officer U k U Jeff Cutter U Robert Lapides Printed Name Printed Name �thmCUhManoger � Pr Gov, U%|�s.& Business Services Title Title " , , V 4 44 Eitel "Icier 1.-.,. .. l .. . .. . . . - - 5 1/26/2016 ", 4 :' , , .,-,'''' ,, '''', ,-14,04 i Utility . VVP:00 6,64:kw144reeollit$014iW WAgoVIOSII Invoicins Parameters sheet must be corn minted for each invoice •e. ''' ' C ta ' ehilaH****1 Non-Submitter ,... -,;,,, ,: .4„'..,ori aYen— t 14,0140iFOgiftiet ; 1 4 )iliti'l i tii"t 41) 'or ra.74 ylty",:,11,01,4 Visa El MasterCard El Discover [Amex I EFT/ACH c td,471777 7 7 ,, 1 4 V11244A,141104 # , ",",,,,,,?;.`", ' , ,,,; ' ; L EBPP OCIoud Store ID Cloud Pay ' OBD ' IVR EKiosk §10 ,fiwoa ok, , ,40,44610011'titiVogiiii Ott,f4rWttItiormOtowt,,,PIAttOvort‘orMOlorkitog, , , <, , ,o■titOrOtridstAr :* wmor,tettio4,49toraaitAilltaWatr,P1Mtott,Atotralts&itrotto 4 otiit.tittrag itt+b4 sPii Billing Frequency: Monthly Number of Bills: , 14,000 Number of Cycles: ; Multiple Number of Installments: i Average Invoice Amount: ' $140 Highest Invoice Amount: $ i 125,000 Billing Months (please select the applicable months below): DJan OFeb :War DApr DMay DJun 0 Jul 0 Aug 0 Sept DOct D Nov 0 Dec Z All ti)mKtitioyfil ))).Vlid) iii itiity ) vi t, k/t e e , Piata i kr102gil'la ' ' l g^;)YW+Nii iii,),4 , ,,, . , , i4 , 'i '' ' ■ pry 444 , 414 . 11: : :, a 51 # 410,, NANAREVinfritalltOra l effint26 ; , , ' , '', 4 R44,47's''''' ' 4'44 Z 4X:0;4'001444 f', r44,44444; 21st — 31st „,,4, 4 4411 y44 1St '144411C1,6,4,001 ..... .4, 1 Oth 1 i th _ 20 r th 0 ii''„1m, ,frwreArrw„„f„,,c0140 !, , , , itts i ol i muloottliaiitso , ,v 1 4 Biller E Template 0 Bill Print Vendor (please complete below) 411,11 ,^ , ■O pow ,,,, on o oiMillimmillio,p . ,„,, , ., , ,.. , Vik5NONOtegli, 'J'ipki4004406t , 04YOUL044,1101 ' Ai', ,,,:; ,),,‘ , , , ,4454 , d , , , 410, , "); , ,:,;4AF , pc, ;-, , ,‘ arep ),) atios4)giiiik):0042) is ,' '') ), ViiiegitigefiAntfWV)P0 Hardware: Choose dr Item, QTY MIIIIIIIIIIIIIIIII Provided by: CI Sales Rep El Operations N otes Shipping Address: Total Due If different than location address) : :,,,;%,;',}';„ 00,;0,, 1,060;00,044 , , , ,,,qp , ;44 , 04,040 r wn ; g ,,,,;,, , ,,,,,, r .,„ ,, , , 00-,11,,01: ,; ,'; ve 4,K,' ,,,,11 0. ;'',A)*Irr. Ir■Y+Wk , 4 trAiaNtaittiMitiii64144 4' vkoiwa A ?.*or Item Paid b •a er ,, , , , , ,i Item Paid by Biller , tr,,,,,M E Credit Card: • v01 E pie Credit Interchange, fees, dues assessments + % with $ ' Minimum ,:,,,,„„,, "mg Card: Authorization $ + n % BP WM CI EFT/ACH: $ 1" per item CI EFT/ACH: oIN $ r" per item „, E Flex Pay ACH: $ r per item '1",;' 0 Flex Pay ACH: $ r" per item 4,,to Am, ',','',',"'",,,,I,;,;441,W+1,ArY,,,,illiIIIR,m,',;'''„',4,tuiiir,„,,o, 1 ,,,,,,Ijik41(„4„,*, 0 'Ut ', , , '‘, ,, , if r, ; ' „11 . , , , , ", ,, H 2 OrAvi - 1 ' ' ,' V,. 04*,, ,4 V?v,V''''" ' '1`""41 , i , . ■ ;'''',%))'''''''' Item _____ ti0i Item Paid by Biller ..,1 pi El Credit Card: 1 ' 41 ,„,l,„ - Credit Interchange, fees, dues assessments + % with $ Minimum ■44444,, 1M i Card: (WIthou vi Acceptance) Authorization $ r----- t sa ii ) 4i,,,, MO + F60 % BP Hvi„ EJ EFT/ACH: $ Per item , -, ,,, a 01 EFT/ACH: $ HO Per Item 144 WARVIRTAM # 14PWI ' l i f oUf s4)} " 1,4 WW ( VV II MW ,441 MUWAI , , '') ‘iii'isie ii)k il) it iii",/ )))) i ) L ') ) '') 0 Credit Card Service Fee: $ Max Cap for Credit Cards: $ 0 EFT/ACH: Service • Fee. $ r 0 Paid by payer 0 Paid by Biller 44 A 5; &■'"' 4 '', 4 ; ',' 4, 47,17:70=7:' '', 7 ' ;4, 41 IA'", L ''''''"'' 0, hOck,;', 4''',1„ 'Z'', selecten El Paid by payer IIMEZEIIIIIIIIIIIIIIIIIIII H Paid by Biller 111 ' 0 per item surcharge -) ""ffriettr'ternIViirit . TMS!fitiViiit't„),„)i,iiiiit itiiiimilitil)11)iti i:iiiiIiiitiiitiii'')) , ),iii,,iiiiaiiii ,tii.iiiii)))) no. ,' r, v ‘ m P time .1,, ,', 0 nblie', , , Volvo. ,',.' '.' P , ;,, '1, r '', ,rkilv Au■ka,,,' ,,,,■ 'Al, ,p ,, 'Itqhfl[g■ u . ;,' , }tIllii , P'44' a a,,,,,'At ',;;Q. 4.1 IC will provide the City with Encrypted PIN/Sv■Ape devices. Cost $20.00 per unit per month all inclusive. ; 00.40atus.:4A=titotiiiiftwogA146,140 7/1/2016 k James Dean gr777:MTPM7-4,1117=0,14211 gdig,,,*,PAbloomaS ' Please note the above requested date is not guaranteed. The implementation time frame it; not guaranteed subtect to change and delays to work/hod syslems/dato requirement , „ billet cooperation and other factors. Biller Agreement 1. Licens Grant & Restrictions. Subject to execution by Biller of the Invoice Cloud Biller Order Form incorporating this Agreement, Invoice Cloud hereby grants Biller a non-exclusive, non-transferable, worldwide righ to use the Service described on the Biller Orde Form until termination as provided herein, solely for the following purposes, and specifically to bill and receive payment from Biller's own customers, for Services that are referenced in the Biller Order Form. All rights not expressly granted to Biller are reserved by Invoice Cloud and its licensors. Biller will provide to Invoice Cloud all Biller Data generated for Biller's Customers. Unless otherwise expressly agreed to in writing by Invoice Cloud to the contrary, Invoice Cloud will process all of Biller's Customers' Payment Instrument Transactions requirements related to the Biller Data and will do so via electronic data transmission according to our formats and procedures for each electronic payment type selected in the Biller Order Form. In addition, Biller will sign all third party applications and agreements required for the Service including without limitation payment and credit card processing agr emcntu and merchant agreements. For invoice types listed on the Order Form (e.g. real estate taxes, utility bills, birth certificates, parking tickets, event tickets, etc.), Biller will not use the credit card processing, ACH or check processing of any bank, payment processor, co,ity, or person, other than Invoice Cloud via electronic data transmission or the authorization or processing of Biller's Customers' Payment Instrument Transactions for each electronic payment type selected in the Biller Order Form throughout the term of this Agreement. Biller shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) Recreate, "frame" or "mirror" any portion of the Service on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service; or (v) copy any features, functions or graphics of the Service. 2. Privacy & Security. Invoice Cloud's privacy and security policies may be viewed at http://www.invoicecloud.com/privacy.html. Invoice Cloud reserves the right to modify its privacy and security policies in its reasonable discretion from time to time which modification shall not materially adversely impact such policies. With respect to Protected Health Information (as defined in 45 C.F.R 160.103), Invoice Cloud will enter into a Business Associate Agreement pursuant to 45 CFR part 160 and 164. Invoice Cloud will maintain compliance with current required Payment Card Industry (PCI) standards and Cardholder Information Security standards. 3. Account Information and Data. Invoice Cloud does not and will not own any Customer Data, in the course of providing the Service. Biller, not Invoice Cloud, shall have sole responsibility for the accuracy, quality, integrity, legality, and reliability of, and obtaining the intellectual property rights to use and process all Customer Data. In the event this Agreement is terminated, Invoice Cloud will make available to Biller a file of the Customer Data within 30 days of termination of this Agreement (or at a later time if required by applicable law), if Biller so requests at the time of termination. Invoice Cloud reserves the right to remove and/or discard Customer Data with 30 days notice except as prohibited by applicable law or in the event of exigent circumstances which makes prior notice impracticable, and in which case, notice will be provided promptly thereafter. 4. Confidentiality / Intellectual Property Ownership. Invoice Cloud agrees that it may be furnished with or otherwise have access to Customer Data that the Biller's customers considers being confidential. Invoice Cloud agrees to secure and protect the Customer Data in a manner consistent with the maintenance of Invoice Cloud's own Confidential Information, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential information, but in no event use less than commercially reasonable measures. Invoice Cloud will not sell, transfer, publish, disclose, or otherwise make available any portion of the Customer Data to third partico, except as required to perform the Services under this Agreement or otherwise required by applicable law. Invoice Cloud (and its licensors, where applicable) owns all right, title and interest, including all related Intellectual Property Rights, in and to the invoice Cloud Technology, the Content and the Service and any enhancement requests, feedback, integration unmpnnenm, svggenhnns, idcs, and application programming intn,/acex, recommendations or other information provided by Biller or any other party relating to the Service. In the event any such intellectual property rights in the Invoice Cloud Technology, the Content or the Service do not fall within the specifically enumerated works that constitute works made for hire under applicable copyright laws or are deemed to be owned by Invoice Cloud, Biller hereby irrevocably, expressly and automatically assigns all right, title and interest worldwide in and to such intellectual property rights to Invoice Cloud. The Invoice Cloud name, the Invoice Cloud \ogn, and the product names associated with the Service are trademarks of Invoice Cloud or third parties, and no right or license is granted to use them. Biller agrees that during the course of using or gaining access to the Service (or components thereof) it may be furnished with or otherwise have access to information that Invoice Cloud considers to be confidential including but not limited to Invoice Cloud Technology, customer and/or prospective customer information, pricing and financial information of the parties which are hereby deemed to be Invoice Cloud Confidential Information, or any other information by its very nature constitutes information of a type that any reasonable business person would conclude was intended by Invoice Cloud to be treated as r,mp,ic^my, confiuuohu|, or private (the "Confidential Information"). Biller agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Invoice Cloud's rights therein, using at least as great a degree of care as it uses to maintain the confidentiality of its own confidential inbvnnmion, but in no event use less than reasonable efforts. Biller will not od!, trunofir, publish, disclose, or otherwise make available any portion of the Confidential Information of the other party to third parties (and will ensure that its employee and agents abide by the requirements hereof), except as expressly authorized in this Agreement or otherwise required by applicable law. Biller Agreement Rev z, The complete Biller Agreement includes the Biller Order Form, the Online Terms and Conditions and this Agreement Biller Agreement 5. Billing and Renewal. Invoice Cloud fee for the Service are provided on the Biller Or e,Fo,m.lnvoicrr!ovd's fees are exclusive of all taxes, }evieo, or duties imposed by taxing authorities, Invoice Cloud may assess and/or collect such taxes, levies, or duties against Biller and Biller shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or stat ) taxes based solely on Invoice Cloud's income. All payment obligations are non-cancellable and all amounts or fees paid are non-refundable. Unless Invoice Cloud in its discretion determines otherwise, all fees will be billed in U.S. dollars. If Biller believes Biller's bill or payment is incorrect, Biller must provide written notice to Invoice Cloud within 60 days of the earlier of the invoice date, or the date of payment, with respect to the amount in question to be eligible to receive an adjustment or credit; otherwise such bill or payment is deemed correct. Invoice Cloud reserves the right to modify any pricing with respect to fees owed by the Biller upon thirty days written notice to Biller based on increases incurred by Invoice Cloud on fees, assessments, and the like from credit card processers, bank card issuers, payment associations, ACH and check processers. 6. Term and Termination. The initial term of this Agreement shall be for a period of three (3) years ("Initial Term") commencing on the Effective Date on the Biller Order Form and will renew for each of additional successive three (3) year terms ("Renewal Term") unless terminated as set forth herein. This Agreement may be terminated by either party effective at the end of the Initial or any Renewal Term by such party providing written notice to the other party ofits intent not to renew no less than ninety (90) days prior to the expiration of the then- cuncmt term. Additionally, this Agreement may be terminated by either party with cause in the event o[umaterial breach ofthe terms of this Agreement by the other party and the breach remains uncured for a period of 30 days following receipt of written notice by the breaching party. For example, any unauthorized use of the Invoice Cloud Technology or Service by Biller, or its authorized users will be deemed a material breach of this Agreement. Upon any early termination of this Agreement by Invoice Cloud as a result of the breach, Biller shall remain liable for all fees and charges incurred, and all periodic fees owed through the end of the calendar month following the effective date of termination. Upon any termination or expiration of this Agrrcmcut. Biller's password and access will be disabled and Biller will be obligated to pay the balance due on Biller's account computed in accordance with the Charges and Payment of Fees section above. Biller agrees that Invoice Cloud may charge such unpaid fees to Biller's Debit Account or credit card or otherwise bill Biller for such unpaid fees. 7. Invoice Cloud Responsibilities. Invoice Cloud represents and warrants that it has the legal power and authority to enter into this Agreement. Invoice Cloud warrants that the Service will materially perform the functions that the Biller has selected on the Order Form under normal use and circumstances and that. Invoice Cloud shall use commercially reasonable measures with respect to Customer Data to the extent that it retains such, in the operation of the Service; provided that the Biller shall maintain immediately accessible backups of the Customer Data. In addition, Invoice Cloud will, at its own expense, as the sole and exclusive remedy with respect to performance of the Service, correct any Transaction Data to the extent that such errors have been caused by Invoice Cloud or by malfunctions of Invoice Cloud's processing systems. 8. Limited Warranty EXCEPT AS PROVIDED IN SECTION 7, THE SERVICES AND ALL CONTENT AND TRANSACTION DATA IS PROVIDED WITHOUT ANY EXPRESS, OR IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY INVOICE CLOUD AND ITS LICENSORS AND PAYMENT PROCESSORS. INVOICE CLOUD AND ITS LICENSORS AND PAYMENT PROCESSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, D0FTV/&KS, SYSTEM OR DATA (B) THAT THE SERVICE WILL NOT DELAY IN PROCESSING OR PAYING, OR (C) THE SERVICE WILL MEET REQUIREMENTS WITH RESPECT TO SIZE OR VOLUME. Invoice Cloud's service may be subject to |imityti000, delays, and other problems inherent in the use of the internet and electronic communications. Invoice cloud is not responsible for any delays, delivery faUurrs, or other damage resulting from such problems. Biller represents and warrants that Biller has not falsely identified itself nor provided any false information to gain access to the Service and that Biller's billing information is correct. 9. Biller's Responsibilities. Biller represents and vvarrunt, that it has the legal power and authority to enter into this Agreement. Biller is responsible for all activity occurring under Biller's accounts and shall abide by all applicable laws, and regulations in connection with Biller's and/or its customers' and a payers' use of the Service, including those related to data privacy, communications, export or import of data and the transmission of technical, personal or other data. Biller shall: (i) notify Invoice Cloud immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Invoice Cloud and immediately stop any copying or distribution of Content that is known or suspected to be unauthorized by Biller or Biller's Users; and (iii) not impersonate another Invoice Cloud user or provide false identity information to gain access to or use the Service. Invoice Cloud is not responsible for any Biller postings in error due to delayed notification from credit card processor, ACH bank and other related circumstances. Biller is required to ensure that it maintains a fair policy with regard to the refund, return or cancellation of services and adjustment of Transactions. Biller is also required to disclose a refund, return or cancellation policies to Invoice Cloud and any applicable payment processors and Biller's Customers, as requested. Any change in a return/ cancellation policy must be submitted to Invoice Cloud, in writing, not less than 21 days prior to the effective date of such change. If Biller allows or is required to provide a price adjustment, or cancellation of services in connection with a Transaction previously processed, Biller will prepare and deliver to Invoice Cloud Transaction Data reflecting such refund/adjustment within 2 days of resolution of the request resulting in such refund/adjustment. The amount of the refund/adjustment cannot exceed the amount shown as the total on the original Transaction Data Biller may not accept cash or any other payment or consideration from a Customer in return for preparing a refund to be deposited to the Customer's account; nor may Biller give cash/check refunds to a Customer in connection with a Transaction previously processed, unless required by applicable law Biller Agreement Rev 2 c The complete Biller Agreement includes the Biller Order Form, the Online Terms and Conditions and this Agreement p a o r 12 Biller Agreement 10. Indemnification. Invoice Cioud shall indemnify and hold Biller, employee , attorneys, and agents, harmless from any losses, liabilities, and damages (including, without limitation, Biller's costs, and reasonable attorneys' fees) arising out: (i) failure by Invoice Cloud to implement commercially reasonable measures against the theft of the Custome Data; or (ii) its total failure to deliver funds proce sed by Invoice Cloud as required hereunder (which relates to payments due from Invoice Cloud for Transaction Data). This indemnification does not apply to any claim or complaint relating to Biller's failure to resolve a payment dispute concerning debts owed to Biller or Biller's negligence or willful misconduct or violation of any applicable agreement or law. Biller shall indemnify and hold Invoice Cloud, its licensors and Invoice C|oud's, ouhvidiorizo, affiliates, officers, directors, employees, attorneys, ugcnts, and payment processors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any claim, cause of action, |wvvouit, administrative or criminal investigation, charge, action or claim alleging: (i) that use of the Customer Data infringes the rights of a third party; (ii) a violation by Biller of Biller's representations and warranties or the breach by Biller or Biller's Users of this Agreement including without limitation incomplete or inaccurate Transaction Data; or (iii) relating directly or indirectly to Biller's or its authorized users' use of the Service. 11. Limitation of Liability. INVOICE CLOUD'S AGGREGATE LIABILITY SHALL BE UP TO AND NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM BILLER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL INVOICE CLOUD AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF DATA REVENUE PROFITS USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS SERVICE EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Biller. 12. Export Control. The Biller agrees to comply with United States export controls administered by the U.S. Department of Commerce, the United States Department of Tr asury Office of Foreign Assets Control, and other U.S. agencies. 13. Notice. Either party may give notice by electronic mail to the other party's email address (for Biller, that address on record on the Biller Order Form, or by written communication sent by first class mail or pre-paid post to the other party's address on record in Invoice Cloud's account information for Biller, and for Invoice Cloud, to Invoice Cloud, Inc., 30 Braintree Hill Office Pu«k, Suite 303, Braintree, MA 02184 Attention: Client Services. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). 14. Assignment. This Agreement may not be assigned by either party without the prior written approval of the other party, but may be assigned without such party's consent to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. 15. Insurance. Invoice Cloud agrees to maintain in full force and effect during the term of the Agreement, at its own cost, the following coverages: a. Commercial General or Business Liability Insurance with minimum combined single limits of One Million ($1,000.000) each occurrence and Two Million ($2,000,000) general aggregate. b. Umbrella Liability Insurance with minimum combined single limits of Five Million ($5,000,000) each occurrence and Five Million ($5,000,000) general aggregate. c. Automobile Liability Insurance with minimum combined single limits for bodily injury and property damage of not less than One Million ($1,000,000) for any one occurrence, with respect to each of the Invoice Cloud's owned, hired or non-owned vehicles assigned to or used in performance of the Services. d. Errors and Omissions Insurance (Professional Liability and Cyber Insurance) with limits of liability of at least One Million Dollars ($1,000,000) per claim and in the aggregate. 16. Immigration Laws. For Services performed within the United States, Invoice Cloud will assign only personnel who are either citizens of the United States or legally eligible to work in the United States. Invoice Cloud represents and warrants that it has complied and will comply with all applicable immigration laws with respect to the personnel assigned to the Biller. 17. General. With respect to agreements with municipalities, localities or governmental authorities, this Agreement shall be governed by the law of the state wherein such municipality, locality or governmental authority is established, without regard to the choice or conflicts of law provisions of any jurisdiction. With respect to Billers who are not with municipalities, localities or governmental authorities, this Agreement shall be governed by Massachusetts law and controlling United States federal law, without regard to the choice or conflicts of law provisions Biller Agreement Rev 2 z The complete Biller Agreement includes the Biller Order Form, the Online Terms and Conditions and this Agreement Biller Agreement of any jurisdiction. No text or information set forth on any other purchase order, preprinted form or document (other than an Biller Order, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Biller and Invoice Cloud as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Invoice Cloud in writing. All rights and obligations of the parties in Sections 4, 6, ID, ll. 13 and 17 shall survive termination of this Agreement. This Agreement, together with any applicable Biller Order Form, comprises the entire agreement between Biller and Invoice Cloud and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral between the parties regarding the subject matter contained herein. Biller agrees that Invoice Cloud can disclose the fact that Biller is a paying customer and the edition of the Service that Biller is using. Additional terms and conditions and definitions applicable to this Agreement and the Biller Order Form are found at www.invoicecloud.com/termsandconditions and are agreed to by Invoice Cloud and the Biller. Biller Agreement Rev 2.2 The complete Biller Agreement includes the Biller Order Form, the Online Terms and Conditions and this Agreement c, 14 uuLcus TERMS AND cnmooinNs ("wn.ioroi,nmu .c"mitcmvo"demviovns,) 1. Definitions. As used in the Agreement and in any Biller Order Form flOW or hereafter: Agreement' or Biller Agreement' means these tenhs and conditions, itions, any Biller Orde Form. whether written or submitted online and any materials available "" the Invoice Cloud °rbs/te specifically incorporated by reference lierein "Biller [)ata" means s invoices and hills ofthc Biller; "Chargeback" is a reversal of a Transaction initiated by a credit card company, processor bank or other financial institution that Biller previously presented to Invoice Clou under this Agreement; "Content" means the information and documents contained or made available to Biller by Invoice Cloud in the course of using the Service; "Customer" shall include customers, taxpayers and users of services tf Biller; "Customer Data" means any data, infortnation or material provided or submitted by Biller or its Customers to the Service or the Biller's customers and/or payers in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by executing a Btller Order Form; "Intellectual Property Righ ^ ted inventions, paten applications, design rights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives, integration components and application programnsing interfaces thereof, and form of protection of a similar natu anywhere in the world; "Invoice Cloud" means collectively Invoice Cloud, Inc., a Delaware corporation; "Invoice Cloud Technology" means all of invoice Cloud's proprietary technology (including mo*ure, hum~^re, products, algorithms, user interfaces, know-how, techniques, designs and other tangible o,.mangi»le technical material or information) made available to Biller or otherwise developed by Invoice Cloud in providing the Service; "Payment Instrument Transaction" is transaction conducted between Biller and its Customers with respect to an account, or evidence of an account, authorized and established between u Customer and u credit card association v, issuer, m representatives o,moxbeoth,reofmm Biller accepts from Customers as payment for the Services. Payment /nrmmu"t Transactions mc/uuc, but are not limited to, transactions processed by credit and debit cards, ACE!, EF]' and Check 21 transactions, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates and credit accounts "Order Form)" or "Biller Order Form" means the form evidencing the initial subscription for the Service and any subsequent Biller Order Form, applicable fees, billing period, and oth as agreed to between the parties, each such Biller Order Form to he incorporated into and to become apart of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Biller Order Form, the terms of this Agreement shall prevail); "Reserve Account" means a Biller account which is maintained in order to protect Invoice Cloud against the risk of, among other things, existing, potential, or anticipated Chargebacks and to satisfy the other obligations under the Agreement. "Servic,*rmcunuI".v.ccc/v"d'xumogv"opup""n,xcrv.cc.,hec"o,e"`.the/".v.c,c/vuur,c/nv/ouxanu"me identified on the Biller Order Form, developed, operated, and/or maintained by Invoice Cloud, accessible via www.tnvoicecloud.com or another designated web site or It> address, or ancillary online or offline products and services provided to Biller by Invoice Cloud, to which Biller are being granted access under this Agreement, including the Invoice Cloud Technology and the Content; "Submitter" tneans the Biller's status under the Agreement and Order Form where Biller's Customers submit Transaction Data directly to the payment processor or credit card processor svho then processes the Transaction Data with the associated convenience fee being paid to Invoice Cloud and Invoice Cloud being responsible to pay the applicable convenience to the payment processor. "Transaction" is a transaction conducted between a Customer and Invoice Cloud (on behalf of Submitter) utilizing either a 'Payment Instrument or a bill presentment in which consideration is or to be exchanged or tax is or to be due between the Customer and Biller; "Transaction Data" mean is the written or electronic record of a Transaction, including but not limited to an authorization cod or settlement record and Biller Data. 2. Biller's Responsibilities Biller is responsible for all activity occurring under Biller's accounts and shall abide by all applicable laws, and regulations in connection with Biller's and/or its customers' and a payers' use of the Service, including those related to data privacy, communications, export or import of data and the transmission of technical, personal or other data. Biller shall: (i) notify Invoice Cloud immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Invoice Cloud and immediately stop any copying or distribution of Content that is known or suspected to be unauthorized by Biller or Biller's Users; and (iii) not impersonate another Invoice Cloud user or provide false identity information to gain access to or use the Service. Biller may not: (i I send or store material containing software viruses, worms, Trojan horses or other harmful computer code, .files, scripts, agents or programs; (in ) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iii) attempt to gain unauthorized access to the Service or its related systems or networks. Biller shall (i) license, subli sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) Recreate, "frame" or "mirror" any portion of the Service on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service; or ( v) copy any features, functions or graphics of the Service. Invoice Clou is not responsible for any Biller postings in erro due to delayed notification from cred card processo ACH ban and other related circumstances. Biller agrees to provide Invoice Cloud with complete and accurate billing and contact information. This information includes Biller's legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator, Biller agrees to update this information within 30 days of any change to it. Biller is required to ensure that it maintains a fair policy with regard to the refund, retum or cancellation of services and adjustment of Transactions. Biller is also required to disclose any refund, retum or cancellation policies to Invoice Cloud and any applicable payment processors and Biller's Customers, as requested. Any change in a retum/ cancellation policy with the transactions underlying the Transaction Data must he submitted to Invoice Cloud, in writing, not less than 21 days prior to the effective date of such change. If Biller allows or is required t °u or cancellation of services in con om" with a Transac on previously processed, Biller will prepare and deliver w Invoice Cloud Transaction Data reflecting such refund/adjustment within z days "c resolution vr the request resulting tn such fu The amount of the refund/adjustment with respect to Transactions under the Service cannot exceed the amount shown as the total on the original Transaction Data. Biller may not accept cash or any other payment or consideration from a Customer in retum for preparing a refund to be deposited to the Customer's account; nor, with respect to credit card transactions, may Biller give cash/check refunds to a Customer in connection with a Transac on previously processed, unless required by applicable law. Individual users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from Invoice Cloud from time to time. They may opt out of receiving such communications at that time or at any subsequent ttme by changing their preference under hltp:'Ywww.invoicecloud.com/privacy,hlml. Note that because the Service is a hosted, online application, Invoice Cloud occasionally may need to notify all users of the Service (whether or not they have opted Out as described above) of important announcements regarding the operation of the Service, The following is applicable is to any Biller who is a Submitter , and to AMEX credit card charges: As to all Transactions Biller submits to Invoice Cloud for processing, Biller represents and warrants that: (1) The Transaction Data represents payment or refund of payment, for a bona fide transaction. (2) The Transaction Data represents an obligation of the Customer for the amount of the Transaction and the accuracy of all Transaction Data (3) The Transactton Data does nol involve any element of credit for payment of a previously dishonored payment or for any other purpose than payment for a current transaction and future payments as agreed upon by the customer. (4) The Transaction Data is free from any material alteration not authorized by the Customer. (5) The amount charged for the Transaction is not subject to any dispute, setoff, or counterclaim. (6) Neither Biller nor its employees has advanced any cash to the Customer in connection with the Transaction, nor have you accepted payment for effecting credits to a Customer. (7) Biller has made no representations or agreements for the issuance of refunds except as it states in your retum/cancellation policy, which has been previously submitted to Invoice Cloud in writing, and which is available to the Customer. (8) Any transaction submitted to Invoice Cloud to credit a Customer's account represents a refund or adjustment to a Transaction previously submitted to Invoice Cloud, (9) Biller has no knowledge or notice of information that would lead itto believe that the enforceability or collectability of the subject Transaction Data is i impaired. The Transaction Data is in compliance with all applicable laws, ordinances, and regulations. The Transaction Data is originated in compliance with this Agreement and any applicable agreements. (10) For a Transaction where the Customer pays in insta ments or on a deferred payment plan, a Transac on Data record has been prepared separately for each installment transaction or deferred payme t on the date(s) the Customer agreed mbechmued. All installments and deferred payments, whether or not they have been submitted to Invoice Cloud for processing, shall be deemed to be a part of the original Transaction. (11) Biller has not submitted any Transaction that it knows or should have known to be either fraudulent, illegal, or otherwise in violation of any provision of this Agreement or other applicable agreements. (12) All Transaction Data is complete and accurate (including with respect to total due fields) and Invoice Cloud is not liable or responsible for any incomplete or inaccurate Transaction Data. 3. Chargebacks If Biller is subject of excessive Chargebacks, in addition to our other remedies under this Agreement, Invoice Cloud (or the payment processor) may take the following actions: (i) request that Biller in every case commence issuing refund and related payments directly to Customer; (ii) notify Biller of a new rate that will be charged to process Chargebacks; (in) collect from Biller an amount reasonably determined by Invoice Cloud (or the payment processor) to be sufficient to cover anticipated Chargebacks and all related fees, penalties, expenses, and fines or request a Reserve Amount (where a Reserve Account is noted under the Biller Order Form or as otherwise required under the terms of this Agreement or other agreement with Invoice Cloud or any payment processor); or (iv) terminate the Agreement. Biller also agrees to pay any and all penalties, fees, fines and costs assessed against Invoice Cloud (or the payment processor) relating to your violation of this Agreement, or other agreement related thereto. Biller agrees that it is fully liable if any Transaction, for which Invoice Cloud has provided Biller credit or paid Biller, is the subject of a Chargeback or ACH rejects or reversals or other refunds or credits. To the extent Invoice Cloud has paid or may be called upon to pay a Chargeback, refund or adjustment for or on the account of a Customer and Biller does not reimburse us as provided fix in this Agreement, or has insufficient funds to draw from in the Billers Debit Account (to the extent applicable as provided in Section 4 below) then for the purpose of our obtaining reimbursement of such sums paid or anticipated to he paid, Biller shall indemnify, defend and hold Invoice Cloud harmless therefrom. The Billers Debit Account will contain sufficient funds to cover any estimated exposure based on reasonable criteria for Chargebacks, ACH rejects or reversals, credits, returns, and all additional liabilities anticipated under this Agreement, including, but not limited to Chargebacks, fines, fees and penalties. Invoice Cloud may (but is not required to) apply funds in the Billers Debit Account (to the extent applicable as provided in Section 4 below) toward, and set off any funds that would otherwise he payable to Biller against, the satisfaction of any amounts which are or may become due from Biller pursuant to this Agreement. Invoice Cloud may, at its sole discretion, collect fees related to Chargebacks and ACH rejects and reversals, or other refunds or credits from Biller's customers. The following are some of the most common reasons for Chargebacks; in no way is this intended to be an exhaustive list of possible Chargeback reasons: (1) Failure to issue a refund to a Customer as required. (2) Invoice Cloud did not receive Biller's response to a Retrieval Request within 7 days or any shorter time period required by the Payment Brand Rules. (3) A Customer disputes the Transaction, or claims that the Transaction is subject to a set -off, defense, or counterclaim. Invoice Cloud may receive a Chargeback from a Transaction, an AMEX credit card Service or otherwise, where the possibility of Chargebacks are noted as part of the Service. Some common reasons for Chargebacks are listed. In the event that Invoice Cloud receives a Chargeback, Biller shall reimburse Invoice Cloud for such Chargebacks (which may include Invoice Cloud withdrawing such amounts from the Biller's Debit Account). In addition, Biller shall be responsible to Invoice Cloud for charges against any reserves required by payment or credit card processors; and any Chargebacks, by any party, including without limitation Chargebacks claimed by any payment and credit card processors, bank, or other financial services organization. 4. Certain Contractual Terms. Biller shall indemnify and hold Invoice Cloud, its licensors and Invoice Cloud's, subsidiaries, affiliates, officers, directors, employees, attorneys, agents, and payment processors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with any claim, cause of action, lawsuit, administrative or criminal investigation, charge, action or claim alleging: (i) charge against any reserves required by payment or credit card processors; (ii) a Chargeback, by any party, including without limitation Chargebacks claimed by any payment and credit card processors, hank, or other financial services organization; (iii) that use of any Customer Data infringes the rights of a third party; (iv) a violation by Biller of Biller's representations and warranties or the breach by Biller or Biller's Users of this Agreement including without limitation incomplete or inaccurate Transaction Data; or (v) relating directly or indirectly to Biller's or its authorized users' use of the Service. Invoice Cloud may receive a Chargeback from a Transaction where Biller has a submitter agreement, an AMEX credit card Service or otherwise, where the possibility of Chargebacks are noted as part of the Service. Some common reasons for Chargebacks are listed at www. invoicecloud .com /termsandconclitions. In the event that Invoice Cloud receives a Chargeback, Biller shall reimburse Invoice Cloud for such Chargebacks (which may include Invoice Cloud withdrawing such amounts from the Biller's Debit Account). INVOICE CLOUD'S AGGREGATE LIABILITY SHALL BE UP TO AND NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND /OR DUE FROM BILLER IN THE TWELVE ('12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL INVOICE CLOUD AND /OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL.,, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF DATA REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE:) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Biller. To the extent that the Biller's Agreement does not have a Biller indemnification or limitation of liability clause respectively, the above clauses shall control and be binding on the Biller. 6. Biller Deposit Account Automatic Debit (Applicable where Biller Debit Account has been designated on the Biller Order Form) Where Biller authorizes Invoice Cloud's receipt of all fees and periodic fees referenced in the Biller Order Form - from payments made by Customers, or from credit card processers, hank card issuers, payment associations, ACH and check processers, as applicable. Except where prohibited by applicable law, Biller shall establish a Deposit Account(s) whereby Invoice Cloud will automatically withdraw from the Biller's account(s) used for this purpose ( "Biller's Debit Account(s)") the fees and periodic fees referenced in the Order Form and any Chargebacks, ACH rejects or reversals, refunds and other fees due hereunder resulting therefrom. Biller shall be responsible for and pay all fees or charges relating to Biller's Debit Account and the automatic debit facility, in accordance with the terms thereof. In addition, with respect to any invoices and/or payments that are processed through the Service, the Biller's agreements with all such credit card processers, bank card issuers, ACH and check processers shall require remittance and payment to Invoice Cloud, of all fees and to no other account. Biller shall maintain sufficient funds in the Biller's Debit Account to pay all periodic fees, Chargebacks, ACH rejects, reversals refunds and other fees due hereunder resulting therefrom. MERCHANT PROCESSING APPLICATION 4ftiosto AI& doh et '750 Old Meadow ROEsid Referral: Sule 300 McLean, VA 22162 Phone (800 261 -0240 Lead Source: None sAGE PAYMENT SOLUTIONS Sage Payment Solutions is a registered ISOIMSP of BMO Harris Bank N.A. ® Settlement Bank BMO Harris Bank N.A. I Auth Network: VisanetTTSYS 'Settle Network: Vital Office: Invoice Cloud, Inc. Office Phone: 7818483733233 Application ID: 211778 Application Date. 11/23/2015 10:05:58 AM Contractor Name: Carolyn Ambrose Association: Invoice Cloud, Inc. General Information Type of Ownership: Government (Fed,St,Local) Business Open 1/1/1900 Existing MID: Legal Business Name: City of Yakima Business Name: City of Yakima Mailing/Billing Address: 129 N 2nd St Location Address: 129 N 2nd St City: Yakima state: WA Zip 98901 City: Yakima State WA Zip 98901 Phone: (509) 575-6070 Fax: (509) 576-6364 Phone: (509) 575-6070 Fax (509) 576-6364 Contact: Jeff Cutter Email: Jeff.cutter@yakimawa.gov Customer Service Number o & B: Web Site: https://www.yakimawa.gov/ 1 011011.0111P 4 11.11116 Number of Locatons: Tax information Name (as it appears on your Federal Tax Return): City of Yakima Federal Tax ID: 916001293 State Filed: WA Type of Ownership: Government (Fed,St,Local) I CERTIFY THAT I AM A FOREIGN ENTITY / NON-RESIDENT ALIEN I CERTIFY THAT I AM PROVIDING AUTHORIZATION FOR THE ELECTRONIC ISSUANCE OF IRS FORM 1099 Owner/Officer 1 50% Owner/Officer 2 0% Name: Jeff Cutter Name: Title: Interim City Manager Title: Address: 129 N 2nd St Address: City: Yakima State: WA City: State: Zip: 98901 Phone: (509) 575 Phone: Email: Email: SSN: 999 DOB: SSN: DOB: Disclosure I Member Bank (Acquirer) Information I Important Member Bank (Acquirer) Responsibilites 1. A DiscoverNisa/MasterCard/Amencan Express Member is the only entity approved to extend acceptance of Acquirer Name: BMO Harris Bank N.A DiscoverNisa/MasterCard/American Express products directly to a merchant. Acquirer Address: 150 N. Martindale Rd Suite 900 2. A DiscoverNisa/MasterCard/Amencan Express Member must be a principal (signer) to your Merchant Agreement. 3. The Discover/Visa/MasterCard/American Express Member is responsible for educating Merchant on the pertinent Acquirer City: Schaumburg DiscoverNisa/MasterCard/American Express Operating Regulations with which the Merchant must comply. Acquirer State, Z. p: IL, 60173 4. The Discover/Visa/MasterCard/American Express Member is responsible for and must provide settlement funds to the merchant. Acquirer Phone: (847) 240 5. The Discover/Visa/MasterCard/American Express Member is responsible for all funds held in reserve that are derived from settlement. Merchant Information I Important Merchant Responsibilites Merchant Name: City of Yakima 1. Ensure compliance with cardholder data security and storage requirements Merchant Address: 129 N 2nd St 2. Maintain fraud and chargeback thresholds. Merchant City: Yakima 3. Review and Understand the terms of the Merchant Agreement Merchant State, Zip: WA, 98901 4. Comply with DiscoverNisa/MasterCard Operating Regulations. Merchant Phone: (509) 575 THE RESPONSIBILITIES LISTED ABOVE DO NOT SUPERCEDE TERMS OF THE MERCHANT AGREEMENT AND ARE PROVIDED TO ENSURE THE MERCHANT UNDERSTANDS SOME IMPORTANT OBLIGATIONS OF EACH PARTY AND THAT THE DISCOVER/VISA/MASTERCARD MEMBER (ACQUIRER) IS THE ULTIMATE AUTHORITY SHOULD THE MERCHANT HAVE ANY PROBLEMS. X MERCHANT SIGNATURE MERCHANT PRINTED NAME & TITLE DATED Merchant Agreement Page 1 of 4 PLEASE NOTE The complete Merchant Agreement includes this application and the terms and conditions on eight (8) additional pages. BMO agt Harris Bank atom a mi MP MP Underwriting Profile Type Of Business: MOTO Seasonal: False Seasonal High Months: Business Deacnpton: Utility Return Policy: Other Days Until Product Delivery: 0 Monthly Volume: $38808000 Method of Sales %of Products Sold Average Ticket: $140.00 Card Present Swiped 0% Consumer Sales 80% Highest Ticket: $125,000.00 Card Present keyed 10% Business Sales 20% Discount Paid: Monthly Card Not Present 90% Government Sales 0% Billing Questlonaire Please explain your billing / delivery policy: [J Full payment upfront with days until product! service delivery. Partial payment required up front with % and within days until final product! service delivery. Payment received after product / service is provided. If product / service delivery requires recurring billing, please explain available billing options: 0 Monthly Quarterly Semi-Annually Annually Is any part of your business outsourced to a third-party? YES NO If YES, please explain: Authorization to ACM (Checking accounts only, Must include voided business Check for each account) Bank Name: d.11111111 Phone: 01111111111111111. City: Yakima State: WA Zip: 98902 DepositorY Routing #: Account #: 11111111. Fees I Routing #: Account #: 4111111111111111111.60 Interchange O Cost Plus (CP) IN Interchange at pass-through (IPT) [XI FANF CP/CNP (Varies*) * FANF CP and FANF CNP are based on prior months Visa CNP volume, number of locations processing Visa and Tax ID. For further information on the FANF and MSP Network Fee, please go to www.merchantnetworkfee.com. Accept? Card Type Rate 1 Discount Per item Qualification Exceptions (if Applicable) fr.ate I Pius Og Visa 0.600 % Bankcard = 0.000 _tnterchange at Paso Through Check Card = 0.000 El MasterCard 0.600 % Bankcard = 0.000 Interchange at Pass Through Check Card = 0.000 Ds] Discover 0.600 % Bankcard = 0.000 Interchange at Pass Through Check Card = 0.000 • AMEX 0% Bankcard = 0 Check Card = 0 By checking this box merchant opts out of receiving future commeroal marketing communications from American Express. * Note that you may continue to receive marketing communications while American Express updates its records to reflect your choice. Opting out of commercial marketing communications will not preclude you from receiving important transactional or relationship messages from American Express Authorization Fees Other Entitlements Type Per Item Fee Card Type Status Account Visa/MasterCard Auth: $0.10 AVS Fee : $ 0.000 American Express None Discover Auth: $0.10 Discover New Pin Debit Auth: $0.45 Carte Blanche None EBT Auth: $0.00 JCB None American Express Auth: $0.00 Carte Blanche Auth: $0.00 JCB Auth: $0.00 ARU Auth: $0.00 Voice Auth Auth: $0.75 Merchant Agreement Page 2 of 4 pi FA,SF NOTF, The complete Merchant Agreement includes this application and the terms and conditions on eight (8) additional pages. a BMO AM Harris Bank Startup Fees '! 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Sage Virtual Terminal VAR / STAGE Certification and Agreement By signing below, the merchant named: (1) certifies to Sage Payment Solutions that he /she is authorized to sign this agreement; (2) certifies that all information and documents submitted in connection with this application are true and complete; (3) authorizes bank or its agent to verify any of the information given, including credit references, and to obtain credit reports (including a spouse if in a community property state); (4) has read, agreed to, and acknowledges receipt of the terms and conditions of the merchant processing agreement, attached hereto and incorporated herein by reference. The terms and conditions and this application constitute the entire integrated merchant processing agreement by and between merchant, Sage Payment Solutions and bank; (5) agrees that merchant and each transaction submitted to bank will be bound by the agreement in its entirety; anc (6) agrees that merchant will submit transactions to bank only in accordance with the information in this application and will immediately inform Sage Payment Solutions in writing at the address above if any information in this application changes. The agreement will become effective only when signed by bank and Sage Payment Solutions. Merchant further acknowledges that, as used in this paragraph, °bank' means the banking institution indicated by appropriate mark in one of the check boxes located at the top of the first page of this document. By signing below, I represent that the information I have provided on the Application is complete and accurate and I authorize American Express Travel Related Services Company, Inc (American Express) to verify the information on this Application and to receive and exchange information about me, including, requesting reports from consumer reporting agencies. If I ask American Express whether or not a consumer report was requested, American Express will tell me, and if American Express received a report, American Express will give me the name and address of the agency that furnished it. I understand that upon American Express' approval of the business entity indicated above to accept the American Express Card, the Terms and Conditions for American Express Card Acceptance ( "Terms and Conditions') will be sent to such business entity along with a Welcome Letter. By accepting the American Express card for the purchase of goods and /or services, you agree to be bound by the Terms and Conditions. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this day , Merchant: By: X By: Merchant Principal or Corporate Officer Merchant Principal or Corporate Officer Print Name Print Name Accepted by Bank: By : Accepted by Sage Payment Solutions: B y' Merchant Agreement Page 3 of 4 PLEASE NOTE The complete Merchant Agreement includes this application and the terms and conditions on eight (8) additional pages. Bank. Personal Guaranty In consideration of Bank and Sage Payment Solutions' acceptance of the Agreement, the undersigned Guarantor (jointly and severally if more than one) unconditionally guarantees the performance of all obligations of Merchant to Bank and Sage Payment Solutions under the Agreement and payment of all sums due thereunder, and in the event of default, hereby waives notice of default and agrees to indemnify Bank and Sage Payment Solutions for all funds due from Merchant pursuant to the terms of the Agreement This is a guaranty of payment and performance and not of collection, and in no case will Sage Payment Solutions be required to attempt collection from Company or pursue any other remedy or action before collection from Guarantor, Guarantor waives any and all rights of subrogation, reimbursement or indemnity derived from Merchant and all other rights and defenses available to Guarantor under applicable law, including California Civil Code Sections 2787 to 2856, inclusive )or any similar suretyship laws), and further waives any and all rights, defenses or notices arising by reason of any modification or change in the terms of the Agreement whatsoever, including, without limitation, the renewal, extension, acceleration, or other change in the time any payment or other performance thereunder is due, and / or any change in any interest or discount rate or fee thereunder. Guarantor confirms that Guarantor, collectively or individually, is an officer or shareholder to the Merchant and party to the Agreement, and unconditionally and specifically authorizes Bank, or its authorized agent, to debit any overdue fees, costs, chargebacks, fines, penalties, expenses or obligations under the Agreement and / or any contractual relationship with Bank or Sage Payment Solutions from any personal checking account or other account owned or controlled by Guarantor, and further to report any default hereunder on Guarantor's personal Credit Bureau Report. Guarantor agrees to pay all costs arid expenses of whatever nature, including attorneys fees and other legal expenses, incurred by or on behalf of Bank or Sage Payment Solutions in connection with the enforcement of this Guaranty. Guarantor further acknowledges that, as used in this paragraph, "Bank" means the banking institution indicated by appropriate mark in one of the check boxes located at the lop of the first page of this document. X , An Individual Date , An Individual l Date Signature Signature Print Name Print Name ** EARLY TERMINATION.' If Company cancels this Agreement during the term or any agreed upon extension term, applicable early termination fees shall be due Sage. See Article V Section 5.01 of the attached terms and conditions for additional details. Site Inspection Information (To be completed by Sales Rep) I HAVE PERSONALLY CONDUCTED A StTE INSPECTION FOR THIS MERCHANT, VISUALLY INSPECTED THE MERCHANT'S INVENTORY (IF APPLICABLE) AND REPRESENT THE INFORMATION IN THIS MERCHANT APPLICATION IS ACCURATE AND COMPLETE Location Type: [j Retail Store El Office Industrial E] Residence El Trade Other (describe) Merchant: 0 Owns i:i Lease Business SALES REPRESENTATIVE - SIGNATURE SALES REPRESENTATIVE PRINTED NAME & TITLE DATED Merchant Agreement Page 4 of 4 PLEASE NOTE The complete Merchant Agreement includes this application and the terms and conditions on eight )8) additional pages. 1111001111 AIM AIM BMO Z1 Harris Bank .4111P W TERMS AGREEMENT These are the Terms and Conditions "r Merchant, Agreement referred m/" the Merchant Processing Application ("Appucaa"olby and between Sage Payment Solutions, Inc. ("SPS"), BMO Harris N.A. ("Bank"), and the applicant rMerchant") Who has submitted the executed Application. ARTICLE x—ADDITIONAL DEFINITIONS `»/^A,mv"e' means " bank account maintained by Merchant a, set forth i"y°"a"o the crediting "/ collected funds and the debiting fees and charges pursuant ," this Agreement. ,/m ^Aon^ means the Automated Clearing House paperless entry system operated by the Federal Reserve. LOS ''Am,"mem'' means the Application including the Schedule vr Fees, these Terms "oa Conditions v[ Merchant Agreement with all exhibits and attachments, and any supplementary documents indicated herein, asamended from time to trnw, all of ss heb constitute tlw Agreement. z.o+ "American Express" means American Express Travel Related Services Company, Inc. /.oa "American Express Merchant Operating Guide" means the rules and regulations available ,'°°"^m°r/o,^°zp="".,"rn/m°,,hmw»c"u" (or any successor ", replacement wr6sim).uo,6*'maxbeummaru6"m,imr*aoe^rAm",/cuoExp°"". /.00^Auth",ixatiuu^ means a computerized function ",o direct phone call mx designated number m obtain credit approval m, individual Transactions from the Card Issuer. 1.07 ^ Cnrd ^ means any account ^r evidence "f," account issued *n Cardholder under x"en^° from n Payment Brand, any any or representative or iuetnber >f a Payment amou that Merchan t accepts as paynen t from Cardholders for goods or sers ices. Cards include, but are not limited tn, credit and dehit/chec cards, stored value cards, loyacards, electronic gift cards, authorized account m access numbers, paper certificates, and credit accounts and any other payment instrument with ^" embedded microcomputer omVa`i ,^^''c^nmo/dr'' (also referred mm "Card Member" /o some Payment Brand materials) means the person whose name i" embossed upon the lime of the Card and ss ho purports p}emrr"moiu°h",enum,theoma/"/""uea. 1.09 "Card Issuer" means the financial institution ", company, which has provided ° Card m the Cardholder. ,.zo~Ch mrauot|epu.e/"re/r°hic6.xnouevu/",*[uaulesoma<",ais»u*ap"rtiouthrre^0^^omn|muauk/vucurd/,^uer, `./z "Credit Voucher" means u document executed by u Merchant evidencing any reu^a or price adjustment relating to Cards to be credited to a Cardholder account. z.xe ^ o*ut[ara''m , uoouplmacuurduseaminiooteoacu,T,ao,u,a^..u~e6r,/ma"}rmpvrchuo,gwd"vrs,r/o,^uod^uaincu,h.for*u,h the ('ardholder's hank account is debited by the issuer, ,.m "Discount Fee" means " fee charged "n all Transactions that /" payable /y Merchant mepafb, processing w°=h"m'°Transactions. ,.,* "Discover" means DES Services, EEC. 115 "EMV" means Europay, MasterCard and Visa. 1.16 "Imprint" means: (i) an impression On a Sales Draft manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by sw Ming a Card through a terminal and electronically printing a Sales I3raft. L17 "MasterCard" means MasterCard International Incorporated. 1.18 "Payment Brand" means any payment method accepted by SPS Mr processing, including, without limitation, Visa, MasterCard, Discover, American Express and other credit and debit card providers, debit network providers, gift card, and other stored value and loyalty program providers. 1.10 "PCI DSS" means the Payment Card Industry Data Security Standards available at http://www.pcisecuritystandards.org, as amended from time to time. ..e* "Reserve Account" has tlit' meaning set forth in Section 6.06. 1.21 ''oules means the rules, regulations, and other requirements uf any Payment Brand v, related authority, including, without limitation, those ^rthe J'Cl Security Standards Council, LL(' and the Natic,nal Automated ('learing I'Iouse Association, as amended from time m time. . "Ru|m^ includes without limitation tlt Visa USA, ln . Operating Regulations, v/sa/"temutiomaopoaa" Regulations, MasterCard Rules, Discover Operating Regulations, and the America not defiiied herein shall have the meanings set forth in the Rules. 1.22 "Sales Draft" means the paper form approved in advance by SPS, whether such fiirm is electronically or maiiiially imprinted, evidencing asale Transaction. ,.ao means any retail sale "/ goods ", services, ",credit for such, from Merchant hr v hich tlii' customer inahes payment through the use of any Card and which is presented to Bank for collection. L24 ~riyo^ means Visa Inc. `.ux "Voice Authorization" means " direct phone call m, designated number m obtain credit approval """Transaction. ARTICLE H- MERCHANT REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 2.01 Honoring Cards. (a) Merchant will accept, without discrimination, all valid Cards properly presented fopayment fbr bona fide, legitimate business transactions arising out of Merchant's usual trade or business and for Transactions originated by Merchant; (b) U.S. retailers may require a minimum purchase amount on credit card Transactions. The minimum purchase amount must not exceed $10.00 (ten dollars) and does not apply to transactions made with a Debit Card. Maximum transactions amounts may be established by Federal agencies and institutions of' higher learnnig; (c) Merchant shall not require any Cardholder to pay any part of any fee imposed upon Merchant by this Agreement, whether through any iticrease in price or otherwise require a customer presenting a Card to pay any charge as a condition of sale that is not also required from a customer paying cash. However, Merchant may offer discounts to customers for cash purchases. Merchant may also charge a service fee on Transactions if Merchant charges a service fee: (i) for all payment: methods (check, credit card, etc.) or (ii) for a specific payment mode (telephone) and not Mr other payment modes (face-to-Mce); (d) Merchant shall not accept a Card as payment (other than to the extent permitted by this Agreement), if the person seeking to use the Card does not present the Card to permit Merchant to examine it and obtain an Imprint or otherwise use the physical Card to complete the Transaction. Merchant shall not deposit any Transaction fbr the purpose of obtaining or providing a cash advance either on Merchant's Card or the Card of any other party. Merchant agrees that any such deposit shall be grounds for immediate termination. Merchant shall not obtain under any circumstance Authorization for, nor process a sale on, any Card that Merchant is authorized to use. Processing Merchant's own Card is grounds for immediate termination. 2.02 Card Acceptance. When accepting a Card Mr a face-to-face Transaction, Merchant will follow the steps provided by Bank and SPS, and will: (a) Examine the Card for the Cardholder's signature and if the Card is not signed, request identification to confirm that the Cardholder is the person he/she purports to be and determine in good faith and to the best of its ability that the Card is valid on its face; (b) Check the effective date gaily) and the expiration date of the Card, examine any card security features (such as a hologram) included on the Card; and (c) Obtain Authorization before completing any Transaction (where Authorization is obtained, Merchant Will be deemed to warrant the true identity of the customer as the Cardholder); (d) Unless the Sales Draft is electronically generated or is the result of an Internet, mail, telephone or preauthorized order, obtain an Imprint of the Card; (e) Enter a description of the goods or services sold and the price thereof (including any applicable taxes); (f) As required by the Rules, obtain the Cardholder's signature on the Sales Drafi and compare that signature to the signature on the Card; (g) Deliver a true and completed copy of the Sales Draft to the Cardholder at the time of delivery of the gcods or perfbrmance of the services, or if the Sales Draft is prepared by a point-of-sale terminal, at the time of the sale; (h) Provide the Sales Il/raft to the Cardholder following the purchase; and (d) Legibly reproduce the Cardholder's name, account number, expiration date, and the Merchant's name and place of business if that information is not legibly imprinted on the Sales Draft. In addition, for MasterCard Transactions, Merchant will legibly reproduce the name of the Card Issuer as it appears on the face of the Card. Each Sales Draft presented to Bank Mr collection shall be genuine and will not be the result of any fraudulent Transaction or telemarketing sale and shall not be deposited on behalf of any business other than Merchant. 2.03 Authorization. (a) Merchant will obtain a prior Authorization fbr all Card sales. If Merchant cannot, for any reason, obtain an electronic Authorization, Merchant will request a Voice Authorization from the designated authorization center, and will legibly print the authorization number on the Sales IIraft; Sage Merchant Agreement Page 1 of 9 Revision 20150806 PLLASE NOTE: The complete BANKCARD Merchant Agreenmen! includes these terms and condmtion3 and an application on three (3,) additional pages. (b) Merchant will not obtain or attempt to obtain Authorization unless Merchant intends to submit a Transaction for the authorized amount; (c) Merchant will not divide a single Transaction between two or more Sales Drafts or two or more Cards; (d) Merchant will not attempt to obtain Authorization on an expired Card; (e) Merchant acknowledges that an Authorization provides only that the Ciardholder account has sufficient :credit available to cover the amount of the current sale, that an Authorization is not a guarantee of payment, and that an Authorization will not waive any provision of this Agreement or otherwise validate a fraudulent Transaction or a Transaction involving the use of an expired Card. Receiving an Authorization shall not relieve the Merchant of liability for Chargebacl«m any Transaction; (f) Transactions will be deemed invalid on Cards that are expired, whether or not an Authorization has been obtained; (g) If Authorization is granted, Merchant shall print the Authorization number, or ensure that it appears legibly in the appropriate location on the Sales Draft; and (h) IlAuthorization is denied, Merchant shall not complete the Transaction and shall fbllow any instructions from the authorization center; (i) Merchant shall mot obtain or attempt to obtain Authorization fir a 'Transaction that it knows or should have known to be either fraudulent or not authorized by the Cardholder. 2.04 Retention and Retrieval of Cards. (a) Merchant shall use its best efffirts, by reasonable and peaceful means, to retain or recover a Card upon receiving such instructions when making a request for Authorization or if Merchant has reasonable grounds to believe that the Card is counterfeit, fraudulent or stolen; (b) The obligation of Merchant imposed by this Section to retain or recover a Card does not authorize a breach of the peace or any injury to persons or property and Merchant will hold Bank and SPS harmless from any claim arising from any injury to person or property, or other breach of the peace in connection with the retention or recovery of a Card. 2.05 Compliance with Law; Payment Card Industry Data Security Standards; Non-Disclosure and Storage of Cardholder and Transaction Information Requirements. (a) Merchant confirms that it is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Merchant, its business and any Transaction (b) Internet Merchants shall, at a minimum, include the fiillowing information and processes on their Internet sites, (i) prominent display of Merchant's name as "merchant" and as the name that will appear on the Cardholder statement, (ii) a complete description of goods or services offered; (iii) delivery standards including method and time for delivery; (iv) terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable detail; (vi) opportunity to view and confirm order before order submission; (vii) secure method for payment data transmission; (viii) currency of transaction provided (USI)); (ix) disclosure of Merchant's outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Merchant's privacy policy; (xii) alternate Merchant contact info options; and (xiii) display of web hosting company contact information; (c) Merchant hereby certifies that it (and any outside agent or contractor that it may utilize to submit Transactions to SPS) complies and will comply with the PCI DSS and Merchant hereby agrees to pay any fines and penalties that may be assessed by a Payment Brand as a result of Merchant's noncompliance with the requirements of PCI DSS), any data breaches, or by its failure to accurately validate its compliance. Merchant will review and monitor the PCI DSS and other related Rules in order to determine the timeframes and mandates for compliance under PCI DSS. The fbregoing is an ongoing obligation during the term of this Agreement and as this Agreement may be renewed. Merchant acknowledges and understands that Merchant may be prohibited trona participating in Payment Brand programs if it is determined that Merchant is non-compliant The following lists certain (but not all) of the current PCI DSS requirements, all of which Merchant shall comply with, if applicable (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) keep security patches up-to-date; (iii) encrypt stored data; (iv) encrypt data sent across networks; (v) use and regularly update anti-virus software; (vi) restrict access to data to business "need to know;" (vii) assign a unique ID to each person with computer access to data; (viii) do not use vendor supplied defaults for system passwords arid other security parameters; (ix) track access data by unique II); (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Merchant shall notify SPS if it utilizes any third party that provides payment related services, directly or indirectly and/or stores transmits, or processes Cardholder data and Merchant is responsible ensuring compliance of any such third parties with PCI DSS. (d) To the extent Merchant is required under the Rules, or Merchant otherwise elects, to utilize EMV chip-capable terminals, all EMV chip-capable terminals used by Merchant must appear on the EMV co-approved terminal list maintained by the Payment Brands. (e) In the event of the failure, including bankruptcy, insolvency, or other suspension of Merchant's business operations, Merchant shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Transaction information to third parties, Merchant and/or its agent shall either return this infbrmation to SPS or provide SPS with acceptable proof of destruction of this information. (f) If Merchant is undergoing a forensic investigation regarding PCI DSS compliance at the time Merchant executes this Agreement, then Merchant shall fully cooperate with the investigation until completed. SPS warrants that it complies with the applicable required PCI DSS regulations and that SPS is a PCI DSS Validated Service Provider. 2.06 Returns and Adjustments, (a) Merchant policy for the exchange or return of goods sold and the adjustment for services rendered shall be established and posted in accordance with the Rules. If applicable, Merchant agrees to disclose to a Cardholder before a Card sale is made, that if merchandise is returned: (i) no refund, or less than a full refund, will be given; (ii) returned merchandise will only be exchanged for similar merchandise and of comparable value; (iii) only a credit toward purchases will be given; or (iv) special conditions or circumstances apply to the sale (e.g., late delivery, charges, or other noncredit terms); (b) Such disclosures must be made on all copies of Sales Drafts in letters approximately V inches high in close proximity to the space provided for the Cardholder's signature on the Sales Draft and issued at the time of sale; (c) If Merchant does not make these disclosures, a full refund in the firm of a credit to the Cardholder's Card account must be given. Merchant shall not refund cash to a Cardholder who paid for the item by Card; (d) Credits must be made to the same Card account number on which the original sale Transaction was processed. 2.07 Merchant's Business. (a) Merchant shall provide Bank and SPS with immediate notice of its intent to (i) transfer or sell any substantial part of its total assets, or liquidate; (ii) change the basic nature of its business, including selling any products or services not related to its current business; (iii) change fifty percent (50%) or more of the ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to this Agreement assumes any interest in Merchant's business; (Sr (v) alter in any way Merchant's approved monthly volume and average ticket; (b) Failure to provide notice as required above may be deemed a material breach and shall be sufficient grounds for termination of this Agreement, or, at SPS's option may result in SPS amending the terms of this Agreement, holding funds and/or altering the Merchant funding schedule if SPS and Bank deem it necessary to protect against financial loss. If any of the changes listed above occur, Bank and SPS shall have the option to amend the terms of this Agreement or immediately terminate this Agreement; (c) Merchant will immediately notify SPS, with a copy to Bank, of any bankruptcy, receivership, insolvency or similar action initiated by or against Merchant or any of its principals. Merchant will include Bank and SPS on the list of creditors filed with the Bankruptcy Court, whether or not a claim exists at the time of filing; (d) Merchant must notify SPS, with a copy to Bank, in writing of any changes to the information in the Application, including but not limited to: a change to Merchant's financial condition (within 3 days), any additional location or new business, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and the manner in which sales are completed. Merchant must also notify SPS in writing, with a copy to Bank, if Merchant sells or closes its business. Except for a change to the financial condition, SPS and Bank must receive all such notices 7 days prior to the change and otherwise upon request from SPS. Merchant is liable to SPS and Bank for all losses and expenses incurred by SPS and Bank arising out of Merchant's failure to report changes. SPS and Bank may immediately terminate this Agreement upon a change to the information in the Application, whether SPS and Bank independently discover such change or whether Merchant notifies SPS and Bank of such change. 2.08 Advertising. (a) Merchant will prominently display the promotional materials provided by Bank and SPS in its place(s) of business. Use of promotional materials and use of any trade name, trademark, service mark or logotype ("Marks") associated with Card(s) shall be limited to informing the public that Card(s) will be accepted at Merchant's place(s) of business. Merchant's use of promotional materials and Marks is subject to the direction of Bank and SPS and must be utilized in accordance with the Rules; (b) Merchant may use promotional materials and Marks during the term of this Agreement and shall immediately cease use and return any inventory to Bank or SPS upon any termination thereof; (c) Merchant shall not use any promotional materials or Marks associated with any Payment Brand in any way which implies that the Payment Brand endorses any goods or services other than Card services and Merchant shall not refer to any Payment Brand in stating eligibility for Merchant's products or services. Merchant's rights to use the Marks shall terminate with termination of this Agreement and Merchant will cease all use of the Marks upon notification by the applicable Card Sage Merchant Agreement Page 2 of 9 Revision 20150806 PLEASE NOTE: The complete BA.NKCARD Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. association to discontinue use. Merchant shall be fully liable to Bank and/or SPS for any and all loss, cost and expenses suffered or incurred by Bank and/or SPS, arising out of failure to return or destroy such materials fbIlowing termination or Merchant's misuse of the Marks. If Merchant is a "Direct Mail Cardholder Solicitation Merchant" then Merchant acknowledges that the trademark 'MasterCard and the corresponding logotype are the property of MasterCard International Incorporated (herein, the Corporation). Merchant shall not infringe upon the mark or logo, nor otherwise use the mark or logo in such a manner as to create the impression that Merchant's products or sere ices are sponsored, produced, affiliated with, offered, or sold by this Clorporation. Merchant shall not use the mark or logo on its stationery, letterhead, envelopes, or the like nor in its solicitation; provided, however, that Merchant may use one of the mark or logo in close proximity to the payment or enrrAlment space in the solicitation in a size not to exceed I /4 inches in horizontal length if a logo is employed, or, if a mark is used, in type not to exceed the size of the type used in the major portion of the text on the' same page; provided further that the legend, 'Accepted for Payment' must accompany the mark or logo used and must be the equivalent size of the mark or logo. In no case, however, shall Merchant use any of the logo on the front or first page of its solicitation. One truthful statement that Merchant is directing or limiting its offer to MasterCard cardholders may appear in the body of the solicitation, other than in close proximity to the payment or enrollment space, subject to the limitation that: (i). only the word mark may he used; (ii) the word mark may not (I) exceed in type size the size of any other type on the same page, (') differ in color from the type used in the text (as differentiated from the titles) on the same page, (3) b1 as large or as prominent as the name of Merchant, (4) be the first item appearing on any page, nor (5) in any other way be the most prominent element of the page; (iii) Merchant's name and/or logo must appear prominently on the same page as the mark; and (is) the fbIlowing disclaimer must appear in close proximity to the mark em the same page and in an equal size and type of print: 'MasterCard International Incorporated is not affiliated in any way with Merchant and has not endorsed or sponsored this offer.' Merchant further agrees to submit its first direct mail solicitation(s), prior to mailing, to the MasterCard Law Department, to be reviewed only for compliance With this Corporation's trademark rules and shall furthermore not distribute in any manner such solicitations until Merchant shall have obtained the Corporation's written approval of the manner in W hick it uses MasterCard mark and logo on such solicitations. N4erchant shall likewise, upon request, submit to the Corporation any amended solicitations prior to mailing. 2.09 Representations and Warranties of Merchant. Merchant represents and warrants to Bank and SPS at the time of execution and during the term of this Agreement that (a) All information contained in the Application or any other documents delivered to Bank and/or SPS in connection therewith is true and complete and properly reflects Merchant's business, financial condition and principal partners, owners or officers; (b) Merchant has time power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and does not and will not violate any provisions of federal or state' law or regulation, or conflict with any other agreement to which Merchant is subject; (c) Merchant has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (d) There is no action, suit or proceeding now !sending or to Merchant's knowledge, threatened by or against or affecting Merchant which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (e) Merchant has performed and Will perform all of its obligations to time Cardholder in connection with the Ifransaction evidenced by each Sales Draft; (f) Unless Merchant notifies SPS in writing (either on time Application or otherwise), no other processing relationship exists between Merchant and another bankcard processing institution, for this, or any other business run or owned by Merchant; (g) With respect Co all Transactions that Merchant requests SPS and Bank to originate, Merchant continuously represents arid warrants to Bank and SPS . that: (i) Each Cardholder has authorized the debiting and/or crediting of its account; (ii) Each entry is for an amount the Cardholder has agreed to; and (iii) Each entry is in all other respects properly authorized; and (h) Merchant will not sell, purchase, provide or exchange army Cardholder's account name or number information in any form to any third party except to Bank or to SPS or pursuant to written government request, and then only upon prior notice to SPS given in sufficient time to permit SPS to file a protective motion. 2.10 Merchant Processing Merchant will tender to SPS for processing all of Merchant's Transactions from all Merchant locations. Merchant will not use the services of any bank, corporation, or person other than SPS for Authorization or processing of Transactions during the term of this Agreement unless Merchant notifies SPS in writing and receives written approval from SPS prior to processing with another institution. 2.11 Additional Requirements for T&E Merchants. If Merchant is a Travel and Entertainment (T&E) merchant providing lodging the terms of this Section shall apply. Merchant must inform Cardholder of time fbllowing regarding reservations as applicable: (a) total obligation, (b) reserved rate and the Transaction amount, (c) exact name and location of lodging company, (d) that accommodations will be held for the number of nights paid fbr, and (e) Merchant's cancellation policy. Merchant must determine the T&E Advance Deposit Transaction amount, not to exceed the cost of the intended length of stay, not to exceed 14 nights lodging. Deposit amounts must be applied to the total obligation. Merchant must provide a confirmation code, an advance deposit amount, cancellation policy and the actual date that cancellation privileges expire. Merchant must advise the Cardholder that it will hold accommodations according to the reservation and provide written confirmation of a Cardholder reservation if requested. Merchant must advise the Cardholder that it will retain time entire T&E Advance Deposit Transaction amount or the amount specified in Merchant's stated policy if the Cardholder does not check in by check-out time the day 1i:snowing the last night of lodging used to determine the deposit or cancel the reservation within the specified time frame. Merchant must complete a Transaction receipt with the following information: (i) advance deposit amount, (ii) the words "Advance Deposit" on the Transaction receipt signature line, (iii) confirmation code, (iv) scheduled check in, and (v) date anti time that cancellation privileges (if any) expire without fOrfeiture. Merchant must mail the Cardholder a Transaction receipt copy within 3 days from the Transaction Date. Merchant shall mail to the Cardholder a Transaction receipt: for cancellations within .5 days of the Transaction date, If the reserved accommodations are unavailable, Merchant must, at no charge, provide a complete rebind of any deposit, comparable accommodations at an alternative establishment for the number of reserved nights not to exceed 14 or until the reserved accommodation become available, ;mid transportation and two 3 telephone calls to the alternative establishment. Any Central Reservation Service must have a svritten contract with the lodging establishment executed by an officer of time hotel and must accept full responsibility for resolving Cardholder problems related to T&E Advance fIeposit Service. The Rules include additional requirement for T&E merchants that provide car rentals or cruises. ARTICLE III - PRESENTMENT, PAYMENT, CHARGEBA(Th RESERVE ACCOUNTS; TYPES OF TRANSACTIONS 3.01 Acceptance. Bank and SPS shall accept from Merchant all valid Sales Drafts deposited by Merchant and shall present the same to time appropriate Card Issuers fbr collection against Cardholder accounts. All presentment and assignment of Sales Drafts, collection therefbre and re-assignment or rejection of such Sales Drafts are subject to the terms of this Agreement and the Rules. Bank shall only provisionally credit the value of collected Sales Drafts to the Account and reserves time right to adjust amounts collected to reflect the value of Chargebacks, fries, penalties, late submission charges and items fbr which Bank did not receive final payment. Settlement of fimds will be in United States Dollars. Bank and SPS may rerbse to accept: any Sales Draft or revoke its prior acceptance ofa Sales Draft in the following circumstances: (a) the Transaction giving rise to the Sales Draft was not made in compliance with all terms and conditions of this Agreement; (b) time Clardholder disputes his liability to Bank for any reason, including but mm( 0 limited to those Chargeback rights enumerated in time Rules; or (c) the Transaction giving rise to the Sales Draft was not directly between Merchant: and time Cardholder. Bank will offset from payments due to Merchant, any amount previously credited to Merchant for a Sales Draft not accepted or later revoked by Bank and SPS. Merchant shall regularly and promptly review all statements of account, banking statements, and other communications sent to Merchant and shall immediately notify SPS if any discrepancy exists between Merchant's records and those provided by SPS, time Merchant's bank, or with respect to any transfer that Merchant believes was not. authorized by Merchant or Cardholder. If Merchant. hills to notify SPS in writing within fburteen (1 4) calendar days after the date that SPS mails or otherwise provides a statement of account or other report of activity to Merchant, Merchant will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer, The forepsing does not limit in any way Merchant's liability for any breach of this Agreement. 3.02 Endorsement. The presentment of Sales Drafts for collection and payment is Merchant's agreement to sell and assign its right, title and interest in each Sales 4./raft completed in con formity comm with Ban k's and SPS's acceptance procedures, rind shall constitute an endorsement by Merchant to Bank of such Sales Drafts. Merchant hereby authorizes Bank to supply such endorsement on Merchant's behalf. Merchant agrees that this Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. Sec. 365, as amended from time to time. Merchant acknowledges that its obligation to Bank and SPS for all amounts owed under this Agreement arise out of the same transaction as Bank's obligation to deposit funds to time Account. Sage Merchant Agreement Page 3 of 9 Revision 20150806 PLEA .5E NOTE: The complete BANKCARD Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. LOS Transmission Method, If Merchant utilizes electronic authorization and/or data capture services, Merchant will enter the data related to a sales or credit Transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the Transaction is completed. If Merchant provides its own electronic terminal or similar device, such terminals must meet SPS's and Bank's requirements for processing Transactions. Information regarding a sales or credit Transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by Merchant to SPS or its agent(s) in the form SPS from time to time specifies, or as required under the Rules. If Bank and SPS request a copy of a Sales Draft, credit voucher or other Transaction evidence, Merchant will provide it within business days following the request. "rhe means of transmission indicated in the Application shall be the exclusive means utilized by Merchant until Merchant has provided SPS with at least 30 days prior written notice, with a copy to Bank, of Merchant's intention to change the means of such delivery or otherwise to alter in any material respect Merchant's medium of transmission of' data to SPS. S.04 Chartrebacks. (a) Simultaneously with each Cardholder Transaction, a contingent and unmatured claim for Chargeback accrues against Merchant in favor of SPS and Bank if under the Rules, SPS or Bank is required, or has the right, to pay to any Payment Brand any fees, discounts, customer credits and adjustments, charges, fines, assessments, penalties or other items which may he charged hack to Merchant by SPS and Bank. Merchant agrees that it is fully liable to Bank and SPS fir all Chargebacks, and that Bank and SPS are authorized to offtet from incoming Transactions and to debit via ACH the Account, the Reserve Account, or any other account held at any other financial institution in the amount of any Chargehack. Niel-chant agrees to accept fbr Chargehack any sale lift which the Cardholder disputes the validity of the sale according to the Rules; or SPS and Bank determine that Merchant has in any way failed to comply with the Rules, this Agreement or SPS's procedures, including but not limited to the fbIlowing: (i) The Sales Draft is illegible, not signed by the Cardholder or has not been presented to Bank within the required time-frames; (ii) The Sales Draft does not contain the Imprint of a valid, un-expired Card; (iii) A valid Authorization number has not been correctly and legibly recorded on the Sales Draft; (iv) The Sales Draft is a duplicate of a prior Transaction or is the result of two or more Transactions generated on one Card for a single sale; (v) The Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased; (vi) The price of goods or services on the Sales Draft differs from the amount which Merchant presents fOr payment; (vii) The Transaction results from an Internet, mail, phone or preauthorized order and the Cardholder disputes entering into or authorizing the Transaction or the Transaction has been made on an expired or non-existing account number; (viii) SPS and Bank believe, within their sole discretion, that Merchant has violated any provision of this Agreement; (ix) SPS determines that the Transaction record is fraudulent or that the Transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, avoidance or offset fbr any reason whatsoever, including without limitation negligence, fraud or dishonesty on the part of Merchant or Merchant's agents or employees; (x) Merchant fails to provide a Sales Draft or legible copy thereof to Bank and SPS in accordance with this Agreement. (b) Merchant acknowledges that SPS and Bank shall have full recourse to charge hack the amount Of a Card sale fbr which the Cardholder disputes that he/she did not authorize the charge if (i) the Imprint of the Card or (ii) the signature of the Cardholder was not obtained by Merchant; and (iii) Merchant shall not initiate a Transaction in an attempt to collect a Chargeback. Merchant shall be liable fir all fees arising out of the Chargeback dispute processes under the Rules. LO5 Processing Limits. Merchant's "Approved Monthly Volume for sales drafts is that monthly volume set forth in the Application or as otherwise set forth in the Merchant account approval letter from SPS to Merchant or as may be later changed by SPS from time to time upon notice to Merchant. If Merchant exceeds the Approved Monthly Volume, either in the aggregate or with respect to any "method of sale": (i) SPS and Bank may suspend processing, hold the funds over the Approved Monthly Volume, and/or return all Sales Drafts evidencing fimds over the Approved Monthly Volume to Merchant; and (ii) Merchant is subject to a 5% fee on all ninnies processed over the Approved Monthly Volume. 8.06 Additional Requirements for Acceptance of Debit Cards, Merchant may honor at the locations set forth on the Application debit cards ("Debit Card") serviced by the electronic funds transfer networks in connection with the sales (Debit Card Sale") of merchandise or services to the holders of such Debit Cards ("Debit Cardholders"). Bank and/or SPS agree to accept from Merchant via electronic transmission documents evidencing such Debit Card Sales ("Sales Transmittal") and Adjustment Drafts (as defined below). (a) Compliance; Authorization; Other Requirements. Merchant agrees to comply (and assume all liability for failure to comply) with the Rules of the Debit Card networks (Networks) as amended from time to time. Any Authorization must be obtained immediately fbr every Debit Card Sale as directed by Bank and/or SPS ("Authorization"). When Authorization is obtained, Merchant will electronically print the authorization number on the Sales Transmittal. Merchant agrees that: (i) for each Debit Card Sale, the Debit Cardholder must enter his Personal Identification Number ("PIN") through a PIN pad located at the point of sale ("PDS"); (ii) each PIN pad will be situated to permit Debit Cardholders to input their PINs without revealing them to other persons, including Merchant's personnel; (iii) Merchant will instruct personnel (a) that they may not ask any Debit Cardholder to disclose the PIN and (b) in the event that any of Merchant's personnel nevertheless becomes aware of any Debit Cardholder's PIN, such personnel will not use such PIN or create or maintain any record of such PIN, and will not disclose such PIN to any other person; (iv) the PIN message must be encrypted from the PIN pad to the POS terminal and from the POS terminal to the Network and back so that the PIN message will not be in the clear at any point in the Transaction; (v) Merchant will comply with any other requirements relating to PIN security as required by Bank or by any Network; (vi) fin- each Debit Card Sale a Transaction receipt in conformity with Regulation E of the Board of Governors of the Federal Reserve System will be made available to the Debit Cardholder; (vii) Merchant may not collect tax as a separate cash transaction; and (viii) POS terminals, including hardware and software, must he certified for use by Bank and by all of the Networks. POS terminals must include encrypted PIN pads which allow entry of up to sixteen character PINs, printers and a keyboard lock function. Merchants are responsible for compliance with all Rules regarding the use of POS terminals, regardless of whether such POS terminals are obtained through Bank or through SPS. Merchant will promptly initiate a refund to the customer (which may be made in cash, by an Adjustment Draft or with a check or cashier's check, as permitted by the Rules) whenever Merchant determines that a Debit Card Sale should be canceled or reversed. Merchant will cooperate with Bank and SPS, to resolve any alleged errors relating to Debit Card Sales. Merchant will maintain adequate records to assist in error resolution; records will be maintained for two years or the period required by the Rules, whichever is greater. Merchant will permit and will pay all expenses of periodic examination and audit of functions at such frequency, as SPS deems appropriate. Audits will meet SPS's standards, and the results will be made available to SPS. Merchant will not accept cash, checks or other negotiable items from any Debit Cardholder and forward a credit through any network (i.e., as a purported payment or deposit to an account maintained by the Debit Cardholder). Merchant will riot forward through any network any Transaction or initiate any reversal of a Transaction that did not originate between Merchant and the Debit Cardholder. (b) Prevention of Fraud. Merchant will fully cooperate with SPS and Bank in the event that Bank or SPS determines that there is a substantial risk of fraud arising from Merchant's access to the network. Merchant will take whatever actions Bank or SPS reasonably deem necessary in order to protect SPS and/or the Bank. Neither SPS, Bank nor any of their respective personnel will have any liability to Merchant for any action taken in good faith. (c) Display of Network Trademark(s); Protection of Trade Secrets. In order to inform Debit Cardholders that Debit Card Sales may be transacted at Merchant's locations, Merchant will prominently display the trademark and/or service mark of each network at each location and will display signage of each network at the entrance, near all POS terminals and on the window of such location. All uses by Merchant of any trademark and/or service mark will comply with the applicable Rules. Merchant acknowledges and agrees that in displaying any such trademark and/or service mark, Merchant will be acting under SPS's and/or Bank's control and subject to approval by the applicable network. Merchant will not be deemed, under any circumstances, a licensee or sub-licensee of any trademark or service mark of any network, nor will Merchant otherwise be deemed to have or to acquire any right, title or interest in trademarks or service marks. (d) Returns and Adjustments. Merchant will attempt to settle in good faith any dispute between it and a Debit Cardholder involving a Debit Card Sale. Merchant will establish a fair, consistent policy for the exchange and return of merchandise and for the adjustment of amounts due on Debit Card Sales. Merchant will not make any cash refimds Or payments fbr returns or adjustments on Debit Card Sales but will instead complete a fbrm provided or approved by Bank ("Adjustment Draft"). The Sales Transmittal for any Debit Card Sale for which no refund or return will be accepted by Merchant must be clearly and conspicuously marked (including on the Debit Cardholder's copy) as "final sale" or "no return" and must comply with the Rules. Sage Merchant Agreement Page 4 of 9 Revision 20150806 PLEASE NOTE: The complete RANKCARD Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. (e) Presentation of Sales Transmittals and Adjustment Drafts. Merchant will electronically transmit to Bank all Sales Transmittals or Adjustment Drafts in a manner acceptable to Bank. Merchant will make a good faith effort to electronically transmit data within one banking business day after the Transaction date. Merchant will not extend the time of payinent for or extend credit fbr any part of a Debit Card Sale. Merchant represents and warrants that the electronic transmission of each Sales Transmittal and Adjustment Draft will evidence a true record of the f)ebit Card Sale Transaction reflected on the document. Bank will process Debit Card Sales transmitted by Merchant, and Bank will promptly credit, debit or charge, as applicable, the appropriate atnount to the Account. Within a reasonable time after the end of each calendar month, Bank will calculate the applicable amount of fees and other charges owed by Merchant, and Bank will debit the Account in the amount of such fees and other charges. The amount of such fees to be paid by Merchant are set forth on Schedule of Fees in the Application. Such fees may be amended at any time by Bank and/or SPS upon Wri t t en notice to Merchant. Bank may reffise to accept or may revoke its acceptance of any Sales Transmittal or Adjustment Draft, and Bank may debit, charge or credit the Account in the corresponding amount, (i) the Debit Card W a s completed without prior Authorization; (ii) the Sales Transmittal or Adjustment Draft involved circumstances constituting a breach of any agreement, representation, or warranty by Merchant; (iii) the I.)ebit Card Sale was in violation of applicable law, the Rules or regulations; (iv) the Debit Cardholder is Merchant, any partner of or shareholder in Merchant, or any affiliate, spouse or immediate family member of any of them; (v) the Debit Card Sale was not made in connection with the sale of goods or services by Merchant. Bank may refuse or revoke the acceptance of any Sales Transmittal or Adjustment of Sales Transmittal upon the occurrence of any of the fiillowing events, and Bank may charge, debit or credit the Account in the ctirresponding, amount if (a) Merchant defaults in paying when due any obligation to Bank or SPS; (b) any material adverse change in Merchant's financial condition occurs; (c) any deposit account at Bank or any of Merchant's prciperty in the possession of Bank is garnished or attached; (d) Merchant assigns its assets generally ffir the benefit of creditors; (e) a proceeding is commenced by or against it under any bankruptcy, insolvency or similar law seeking an order to adjudicate it a bankrupt or insolvent or other relief or seeking appointment of a receiver or similar official for Merchant or ffir any substantial part of Merchant's assets. Merchant will notify Bank and/or SPS in writing immediately upon becoming aware that any such event has occurred or is likely to occur. Bank will notify Merchant promptly of all Adjustment Drafts. Additionally, Bank will advise Merchant on each debit, charge and credit processed to the Account Merchant authorizes Bank to charge debits arising from this Agreement against any credit due Merchant, whether or not such charges create overdrafts or a debit balance in the Account. Merchant agrees to pay Bank or SPS, as applicable, the full amount of any such overdraft or debit balance or to replenish the Account in an amount sufficient to permit the amount of the charge to be made, as applicable, promptly upon request. Merchant ffirther authorizes Bank to suspend in a segregated account amounts which otherwise would be credited to the Account if Bank or SPS reasonably believe that the Sales Transmittals submitted by Merchant are fraudulent. Bank or SPS will notify Merchant of the suspension of such amounts within a reasonable time; provided, however, that such notice will not be required if the appropriate law enffircement agency has been notified of the suspected fraud. ARTICLE — GATEWAY PROGRAMMING 4.01 Applicability to this Agreement. In addition to all the other provisions of this Agreement, the provisions of this Article IV shall apply if Merchant utilizes web services from SPS, including the SPS payments gateway, vault services, any application program interface, code samples, web services, integration specifications, and any offline components (collectively " Web Services"). 4.02 Programming of Web Site. While SPS provides specific AP1's or programming scripts to Merchant or Merchant's Web site programmer(s), Merchant acknowledges that such sample programming scripts are insufficient in and of themselves to allow Merchant's Web site to function with the Web Services. Programming of Merchant's Web site and its ffinctionality are the sole responsibility of Merchant. 4.03 Merchant's Programming Agent. Merchant has the sole responsibility to select and employ any competent programming agent to accomplish the programming required to make Merchant's Web site function correctly with the Web Services. 4.04 Fees Subject to Fluctuation. Fees for the electronic commerce payment system offered by SPS may be based on the number and/or volume of monthly transactions processed by the Merchant. Thus, notwithstanding anything to the contrary herein, the provisions of this Agreement which require notice prior to a change in fees shall not apply to any transactions or services covered by this Article 4. 4.05 Technical Support. Merchant shall be solely responsible for all technical support for Web site-related issues. 4.06 Shut Downs/Updates. SF'S reserves the right, from time to time, without prior notice, to shut down and restart the Web Services fbr maintenance and/or Web Services upgrades or updates from time to time. SPS will use commercially reasonable efforts to keep service shut downs as brief as possible. Merchant must monitor updates and upgrades to the W'eb Services and update Merchant's Web site and programming accordingly. 4.07 Disclaimer, SPS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE WEB SERVICES OR ANY CONTENT STORED THEREIN. SPS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE WEB SERVICES WILL BE SECURE, rxMcL,, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR omTa, OR (B) THE WEB SERVICES WILL MEET MERCHANT'S REQUIREMENTS OR EXPECTATIONS. THE WEB SERVICES ARE PROVIDED ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMEI) TO TIlE MAXIMUM EXTENT PERMITTEI) BY APPLICABLE LAW BY SPS ANI) ITS LICENSORS. ARTICLE V - TERMINATION AND EFFECT OF TERMINATION 5.01 Term: Termination. (a) Sage Merchant Processing Account shall have an initial term of three (3) years and Sage Mobile Payments Account shall have initial term of one ( of hereof (evidenced by the execution of the Agreement by SPS); (ii) the date of written notice from SPS that Merchant's application is approved for processing; or (iii) the date on which Merchant's first Transaction is processed, and (iv) shall automatically renew as follows: (1) Sage Merchant Processing Account shall renew for consecutive (2) year terms; and (3) Sage Mobile Payments Account shall renew on a month-to-month basis (respectively the "Renewal Term"), and unless terminated as set forth below; (b) This Agreement may be terminated by any party effective at the end of the Initial or any Renewal Term by providing written notice to the other parties of its intent not to renew no less than thirty (30) days prior to the expiration of the then-current term. Additionally, this Agreement may be terminated: (i) by SPS and Bank at any time with or without cause, and without prior notice, and (ii) by Merchant in the event of a material breach of the terms of this Agreement by SPS and Bank, provided Merchant provides SPS and Bank written notice of the alleged breach and the breach remains uncured for a period of 30 days following receipt of written notice by the breaching party. (c) Upon early termination of this Agreement by Merchant, or by SPS should Merchant breach any of the terms of this Agreement during the Initial Term or any Renewal Term, Merchant shall pay to. SPS an early termination fee equal to (i) Saze Merchant Processing Account —twenty-five dollars ($35.00) for every month remaining in any such Term or Renewal Term for each Merchant location; (ii) Sage Mobile Payments Account - no early termination fee (respectively the "Early Termination Fee"). In addition to the Early Termination Fee, Merchant shall pay any fees, fines, third party costs or penalties which SPS may be assessed due to Merchant's breach of this Agreement and/or early termination. To the extent that applicable state law mandates lesser termination fees, the Early Termination Fee shall be the maximum allowed by applicable law. Merchant will not owe the Early Termination Fee if Merchant elects not to renew the Agreement upon the expiration of the then current term »r providing written notice ." accordance °.m this paragraph. 'm/ rights and obligations of the parties existing as of the effectiv termination °o�� termination; (d) Within SPS's and Bank' sole xx °/°/�"rch"".' or a of its principapsy business or personal credit deteriorates, if any significant circumstances exist that would create harm or loss to the goodwill of �"��m",�m�mm"mp�=��g�mmm°um��"��""��rnhmo^onuc, federal federal ��| dealing � ��/�/�� or payment "° accelerate and become immediately Agreement necessity any notice, declaration or other any " whatsoever d SPS. Merchant "grresmo"tifyspsma/",mmumm°a/ote|y*rmvbuuxmptcr.recei.,mu^io"a`m7"ruimou,m,i"nini^iateab«^,,zain".u,nhu",. Sage Merchant Agreement Page 5 of 9 Revision 20150806 PLEASE NOTE: The complete BANKCARD Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. Effect of Termination. and SPS to withhold and (Jiscontinue the disbursement kir all Cards and other payment Transactions of Merchant in the process of' being collected and deposited; (b) Collected funds will be placed in the Reserve Account (defined below) until Merchant pays any equipment and processing cancellation fees and any outstanding charges, losses or amounts for which Merchant is liable under this Agreement. Further, Bank reserves the right to require Merchant to deposit additional amounts based upon Merchant's processing history and/or anticipated risk of loss to Bank into the Reserve Account. The Reserve Account shall be maintained a minimum of 270 days after the termination date and for any reasonable period thereafter, during which Cardholder disputes may remain valid under the Rules. The provisions of this Agreement relating to the debiting and crediting of the Account shall be applied to the Reserve_Account and shall survive termination of this Agreement until Bank terminates the Reserve Account. Any balance remaining after Chargeback rights have expired and all other expenses, losses and damages have been paid will be disbursed to Merchant; (c) Merchant expressly acknowledges that the MATCH system and Early Termination File (collectively, the "MATCH") is a maintained by MasterCard and Visa and contains the business name and the names and identification of principals of Merchant which have been terminated for one or more of the reasons specified in the Rules. Such reasons include, but are not limited to: fraud, counterfeit paper, unauthorized Transactions, excessive Chargebacks or highly suspect activity. Merchant acknowledges that SPS and Bank are required to report the business name of the Merchant and the names and identification of its principals to MATCH when Merchant is terminated for such reasons. Merchant consents to such reporting to the card associations and/or payment networks as applicable by Bank and SPS. Further, Merchant waives and will hold harmless Bank and SPS from any claims that Merchant may raise because of such reporting; (d) Upon termination for any reason, Merchant will immediately cease requesting Authorizations and will cease transmitting Sales Drafts to Bank and SPS. In the event Merchant obtains any Authorization after termination, Merchant expressly acknowledges and agrees that the fact that any Authorization was requested or obtained shall not operate to reinstate this Agreement; (e) Following termination, Merchant shall upon request provide Bank and SPS with all original arid microfilm copies of Sales Drafts and Credit Vouchers to be retained as of the date of termination. ARTICLE VI ACCOUNTS SECURITY INTERESTS: 6.01 Accounting Monitoring. (a) Merchant agrees that u Bank may suspend, within their sole di reti the disb .«Merchant's funds for any reasonable period of time required to investigate suspicious or unusual deposit activity. SPS and Bank will make good faith efforts to notify Merchant promptly. SPS and Bank shall have no liability for any losses, either direct or indirect, which Merchant may attribute to any suspension of funds disbursement; (h) In the event of unusual Transactions that have been "suspended" and cannot be verified as valid sales or have been verified as Cardholder disputes, Merchant agrees that a security processing fee not to exceed 110% of the unusual Transaction(s) may be assessed; (c) Merchant's presentation to SPS and Bank of' Excessive Activity will be a breach of this Agreement and cause for immediate termination of this Agreement. "Excessive Activity" refars to any period of two or more calendar months during which Merchant has a Chargeback ratio that exceeds 1% by number of Transactions or a Charg,eback ratio that exceeds 1% by dollar volume. Merchant authorizes, upon the occurrence of Excessive Activity, Bank and SPS to take additional actions as either of them may deem necessary, including, but not limited to, suspension of processing privileges, increase of any fees that may be charged to Merchant and/or creation or maintenance of a Reserve Account in accordance with this Agreement. 6.02 Forms. Merchant shall use only such forms or modes of transmission of Sales Drafts and Credit Vouchers as are provided or approved in advance by SPS and Bank, and Merchant shall not use forms provided by Bank and SPS other than in connection with Transactions without SPS's arid Bank's prior written consent. v.o: Records. /" addition m any records routinely furnished msry and Bank under this Merchant hall preserve a paper or electronic c of all actual paper Sales Drafts, Credit Vouchers and Debit Card Sales and, i/" mail, phone order ",prea"awriz°u order m involved, the Cardholder's signed for the Transaction, a" .| �n ur � date Merchant ��h z= . If and/or data "ora� system associated authorization , " at °� x°","" after "" „°°°” the ""=.=� ° u " ",° on "�m°�"",=" with Merchant are sub aed by l | process or otherwise, ero"h«u,"d,"°"""h records in accordance with the subpoena without notice to Merchant. v.o* Requests amc"n/"" ` W/th/" o a"r""f"°°ipt°r"" itten or verbal request by Bank and SPS, Merchant shall provide either the actual paper Sales Draft, Credit Voucher and/or Debit Card Sales or a legible copy thereof (in size comparable to the actual voucher or draft ) and any other documentar evidence available ° Merchant and reasonably requested bx Bank ",ara° meet Bank's obligations under law (including its obligations under the Fair Credit Billi Act) therwise to res d to questions concerning Cardholder accounts. 6.05 IRS Wi and Reporting. Section 6050W of the Internal Revenue Code ("Cod ^ requires payment providers and third party payment networks, such as SPS, to report payment settlement "m"oumto the Internal Revenue Service (^/ns'') for each Merchant process /"s through apa.Merchant shall verify its identity by providing mps with u Tax Identification Number (''T/N')such as a Social Security Number (SSN) or Employer Identification Number for each Merchant Account. In the event Merchant fails to provide its TIN, SPS will place a restriction Merchant's Account oo may restrict the receipt of funds into Merchant's Account, or withhold a percentage of payments deposited into Merchant's Account in order to satisfy the backup withholding requirements of the IRS. 6.06 Security Interests, Reserve Account, Recoupment and Set-Off (a) This Agreement is a security agreement under the Uniform Commercial Code. Merchant grants to Bank and SPS a security interest in and lien upon: (i) the Account (as set forth in Section 6.10) and all funds at any time in the Account, whatever the source of such funds, (ii) the Reserve Account (as defined below) and all funds at any time in the Reserve Account, whatever the source of such funds, (iii) future Sales Drafts, (iv) all Merchant's rights relating to this Agreement including, without limitation, all rights to receive any payments or credits under this Agreement; and (v) all Merchant deposit accounts now owned or hereafter acquired and the proceeds of all of the foregoing (collectively, the "Secured Assets"). Upon request of Bank and SPS, Merchant will execute one or more financing statements or other documents to evidence this security interest. Merchant irrevocably authorizes bank to execute any financing statements or other documents necessary related to this security interest. Merchant represents and warrants that no other party has a security interest in the Secured Assets. These security interests and liens will secure all of Merchant's obligations under this Agreement and any other agreements between Merchant, SPS and Bank including, but not limited to, Merchant's obligation to pay any amounts due to Bank and SPS. With respect to such security interests and liens, Bank and SPS will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. Merchant will obtain from Bank and SPS written consent prior to granting a security interest of any kind in the Secured Assets to a third party; (b) SPS may establish and maintain a non-interest bearing account ("Reserve Account") in the name of Bank at any federally insured financial institution, with sums provided by Merchant that are sufficient to satisfy Merchant's current or future obligations as determined by Bank and SF'S: (i) Bank and SPS shall have the right to initiate a debit to the Account or any other account at any institution to establish or maintain funds in the Reserve Account. Bank or SPS may deposit into the Reserve Account funds they would otherwise be obligated to pay Merchant, for the purpose of establishing or maintaining the Reserve Account in accordance with this Section, if they determine such action is reasonably necessary to protect their interests; (ii) Bank, on its own behalf or at SPS's request, may, without notice to Merchant, apply deposits in the Reserve Account against any outstanding amounts Merchant owes under this Agreement or any other agreement between Merchant and Bank or SPS. SPS or Bank may exercise their rights under this Agreement to collect any amounts due to Bank or SPS including, without limitation, rights of set-off and recoupment. Merchant shall have no right to withdraw funds or debit the Reserve Account. In the event of a bankruptcy proceeding, Bank and SPS may exercise their rights under this Agreement to debit the Reserve Account for amounts due Bank and SPS regardless of the pre-petition or post-petition nature of the amount due Bank and/or SPS. In the event of a bankruptcy proceeding, Merchant also agrees that it will not contest any Motion for Relief from the Automatic Stay, which Bank and SPS may file to debit the Reserve Account. As set forth in Section 5.02, funds in the Reserve Account will remain in the Reserve Account for a minimum of 270 days following termination. Bank will have sole control of the Reserve Account. In the event of a bankruptcy proceeding, Bank and SPS do not consent to the assumption of this Agreement. Nevertheless if this Agreement is assumed Merchant agrees that, in order to establish adequate assurance of future performance within the meaning of 11 U.S.C. Sec. S65, as amended from time to time, Merchant must establish or maintain a Reserve Account in an amount satisfactory to Bank and SPS; (c) Bank and SPS have the right of recoupment and set-oft This means that they may offset any outstanding/uncollected amounts owed to them from: (i) any amounts they would otherwise be obligated to deposit into the Account, and (ii) any other amounts SPS arid Bank may owe Merchant under this Agreement or any other agreement; (d) The rights conferred upon Bank arid SPS in this Section are Sage Merchant Agreement Page 6 of 9 Revision 20150806 PLEASE NOTE: The complete BANKC.4RD Merchant Agreement includes these terms and conditions and an application on three (3,) add itional pages. not intended to be exclusive of acIt other or of any other rights and remedies of Bank and SPS under this Agreement, at law or in equity. Rather, each and every right of Bank and SPS at law or in equity will be CtImulative and concurrent and in addition to every other right. 6.07 Third Pa.rties. (a) Merchant may be using special services or software provided 1.,y a third party to assist Merchant in processing Transactions, including authorizations and settlements, or accounting functions. Merchant is responsible Mr ensuring compliance with the requirements of any third party in using their products. This includes making sure Merchant has and complies with any scAtware updates. SPS and Bank have no responsibility for any transaction until that point in time SPS receives data about the transaction; (b) Merchant will notify SPS immediately if Merchant decides m use electronic authorization or data capture terminals or software provided by any entity other than SPS or its authorized designee ("third party terminals") to process 'Transactions. If Merchant elects to use third party software or terminals, Merchant agrees (i) the third party providing the software or terminals will be Merchant's agent in the delivery of Transactions to Bank via Visa Net or a similar data processing systern or network; and (ii) to assume full responsibility and liability for any failure of that third party to comply with the Rules or this Agreement. Neither Bank nor SPS will be responsible fbr any losses or additional fees incurred by Merchant as a result of any error by a third party agent or a malliinction in a third party's software or terminal. 6.08 Modifications to Agreement. This Agreement is subject to amendment by SPS to conform to the Rules. Further, SPS and Bank [nay, from time to time, amend any provision of this Agreement, including, without limitation, those relating to the discount rate or to other fees and charges payable by Merchant. Ii providing written notice, including electronic written notice, to Merchant (lithe amendment, and the amendment shall become effective unless Bank and SPS receive Merchant's notice of termination of this Agreement within 7 days. Amendments due to changes in a Payment Brand's fees, interchange, aSSeSSIllentti, Rules or any laW, regulation or judicial decision may become effective on such shorter period of dine as SPS and Bank may specify if necessary to comply with the applicable Rule, law, regulation, decision or other change. 6.09 Limitation of Liability: Indemnity. (A) THE LIABILITY, IF ANY, OF BANK AND SPS UNDER THIS AGREEMENT WHETHER TO MERCHANT OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF THE LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE DIFFERENCE BETWEEN (qrnExMuowroprsssmuon,MEncnAmTrom~xwnnAwx*onIwcrncmowTo/Nwmc*rns TRANSACTION OUT OF WHICH THE LIABILITY AROSE OCCURRED, AND (II) ASSESSMENTS, CHARGEBACKS, ANI) ANY OFFSETS AUTHORIZED UNDER THIS AGREEMENT AGAINST SUCH FEES WHICH AROSE DURING SUCH MONTH. IN THE EVENT MORE THAN ONE moNTH Is INVOLVED, THE AGGR.EGATE AMOUNT OF SPS AND BANK'S LIABILITY SHALL NOT EXCEED THE LOWEST AMOUNT DETERMINED IN ACCORD WITH THE FOREGOING CALCULATION FOR ANY ONE MONTH INVOLVED. IN NO EVENT WILL BANK, SPS, NOR ITS OR THEIR oFnoEns, AGENTS, DIRECTORS, OR EMPLOYEES BE LIABLE FOR ANY ImuIxEcz, spnc/aL, CONSEQUENTIAL OR PUNITIVE I)AMAGES; (B) MERCHANT HEREBY A(;REES TO INDEMNIFY AND HOLD BANK, SPS AND ITS AND/OR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE "INDEMNIFIED PARTIES") HARMLESS FROM ANY CLAIM RELATING TO:, (I) ANY DISPUTE BETWEEN MERCHANT AND A CARDHOLDER WITH RESPECT TO THE ALLEGED OR ACTUAL FAILURE BY MERCHANT TO PROCESS A TRANSACTION AS REQUESTED BY SUCH CARDHOLDER OR TO PROVIDE PHYSICAL SECURITY AT OR NEAR ANY TERMINALS OR OTHER PREMISES OF MERCHANT, OR THE TRANSMISSION OR 1)ISCLOSURE OF ANY INFORMATION BY OR THROUGH SPS, (II) THE TRANSMISSION OF ANY INCORRECT OR INCOMPLETE INFORMATION TO A CUSTOMER OF ANY NETWORK MEMBER THROUGH THE NETWORK REGARDING AN ACCOUNT MAINTAINED BY SUCH CUSTOMER, OR THE I)IS('LOSURE THROUGH SUCH NETWORK TO ANY PARTY OF INFORMATION RELATING TO ANY SUCH ACCOUNT; AND (III) MERCHANT'S FAILURE To COMPLY WITH ANY oF THE PROVISIONS OF THIS A(;REEMENT AND APPLICABLE LAWS, RULES AND/OR REGULATIONS, INCLUDING WITHOUT LIMITATION DISPUTES RESULTING FROM MERCHANTS FAILURE TO PROVIDE A SALES TRANSMI VIAL. MERCHANT FURTHER AGREES TO INI)EMNIFY ANI) I-IOLD THE INI)EMNIFIEI) PARTIES HARMLESS FROM ALL CLAIMS, LIABILITY AND EXPENSES ARISING OR RESULTING FROM ANY DISPUTE OR CLAIM MADE AGAINST BANK AND/OR SPS BY ANY THIRD PARTY ARISING OUT OF MERCHANT'S BREACH OF THIS AGREEMENT OR THE RULES. FURTHER, MERCHANT SHALL REIMBURSE BANK OR SPS, AS THE CASE MAY BE, FOR ALL EXPENSES AND COSTS, INCLUDING ATTORNEY'S rEcS,x/nxncoxnD TO THE FORGOIN(;; (C) BANK NOR SPS MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIEI), REGARI)ING ANY SERVICES IT PERFORMS IN ACCORDANCE WITH THIS AGREEMENT, ANI) NOTHING ('ONTAINEI) IN THE A(;REEMENT WILL CONSTITUTE SCUll A WARRANTY. SPS ANI) BANK 1)ISCLAIM ALL IMPLIEI) WARRANTIES, INCLUDING THOSE OF MEnuxA.mTAu/ur, AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. G.10 Account. <4 Merchant will establish and maintain "" ",.""", ", Bank ,.,., any federally insured financial /=a,"a""('A"=unt") reasonably approved by Bank in the United States. Merchant will maintain sufficient funds in the Account to satisfy all obligations, including fees, contemplated by this irrevocably Agreement. Merchant this Agreement. Merchant must obtain prior written consent from Bank and SPS to change the Account. If Merchant does not obtain that consent, SPS or Bank may immediately terminate the Agreement and may take other action necessary, as determined by them within their sole discretion; (b) Bank will deposit all Sales Drafts to the Account stthject to Section 3.01 of this Agreement. Merchant authorizes Bank and SPS to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Merchant conditional credit for any entry; (c) Bank, in its sole discretion, may grant Merchant provisional credit for Transaction amounts in the process of collection, subject to receipt of final payment by Bank and SPS and subject to all Chargebacks and other amounts owed to Bank and SPS under this Agreement; (d) Merchant shall promptly examine all statements relating to the Account, and immediately notify SPS and Bank in writing of any errors. Merchant's written notice must include: (i) Merchant name and account number, (ii) die dollar amount of the asserted error, (iii) a description of the asserted error, and (iv) an explanation of why Merchant believes an error exists and the cause of it, if known. That written notice must be received by SPS and Bank within 60 days after Merchant received the periodic statement containing the asserted error and failure to provide such notice shall bar any claim of errors. MERCHANT MAY NOT MAKE ANY CLAIM AGAINST BANK OR SI'S FOR ANY LOSS OR EXPENSE RELATING TO ANY ASSERTED ERROR FOR 60 DAYS IMMEDIATELY FOLLOWING RECEIPT OF MERCHANT'S WRI'l 1EN NOTICE. During that 60 day period, SPS and Bank will be entitled to investigate the asserted error, and Merchant will not incur any cost or expense in connection with the asserted error without notifying SPS; (e) Merchant will indemnify and hold SPS and Bank harmless for any action they take against the Account pursuant to this Section. Merchant will also indemnify and hold harmless the institution at which Merchant maintains the Account for acting in accordance with any instruction from Bank or SPS regarding the Account. This Section will survive termination of this Agreement; (f) Merchant authorizes Bank and SPS to initiate debit/credit entries to the Account, as the Account may be changed from time to time, and to any other account maintained by Merchant. at any institution that is a receiving bank of ACH, all in accordance with this Agreement. In the event Merchant changes the Account, Merchant will notify SPS, with a copy to Bank, and this authorization will apply to the new Account. This authorization will be effective until both: (i) SPS and Bank have received written notification from Merchant terminating this authorization, and (ii) all obligations of Merchant to SPS and Bank have been paid in full. Merchant will provide to SPS and Bank a voided Account check, and will till in the Account numbers on the Application. 6.11 Fees and Other Amounts Owed. (a) Merchant shall pay the fees and charges as set forth on the Schedule of Fees included on the Application, the provisions of which are incorporated herein by reference. Unless otherwise noted, Merchant. shall pay all fees monthly, with the exception of the Discount Fee and/or interchange, which shall be paid either monthly or daily, as determined by SPS in its sole discretion. Merchant may choose, however, to pay the discount fee on a daily basis by notice to SPS. The Account will be debited through ACH for such amounts and for any other fees, charges or adjustments incurred by Merchant and associated with processing services. Merchant is also obligated to pay all taxes and other charges imposed by any governmental authority on the services provided under this Agreement. Bank and SPS shall have the right to change fees, including adding fees for additional services utilized by Merchant, in accordance with Section 0.08. Interchange Pass Through pricing ("IPT") as specified on Application is comprised of interchange, fees, dues, and assessments assessed by card association. Cost-Plus pricing ("CP") is comprised of IPT plus the 0,st Plus Rate set forth on your Application, wInch is charged to each settled Card and Debit Card Transaction. Merchant may call SPS customer service with any questions regarding pricing, Sage Merchant Agreement Page 7 of 9 Revision 20150806 PLEASE NOTE; The complete BANKARD tlerchant Agreement include,e these terms and conditions and an application on i/tree '3j additional pages. qualifications exceptions, and billing. SPS does not refund fees for returns; (b) Merchant will immediately pay SPS and Bank any amount incurred by SPS attributable to this Agreement or any other agreement between Merchant and SPS or any subsidiary or affiliate of SPS, including but not limited to equipment fees, Chargebacks, fines imposed by a third party, non-sufficient fund fees, and ACH debits that overdraw the Account, Reserve Account, or are otherwise dishonored. Merchant authorizes SPS and Bank to debit via ACH the Account, Reserve Account, any other account Merchant has with SPS, an affiliate or subsidiary of SPS, Bank or at any other financial institution for any amount Merchant owes under this Agreement or under any other contract, note, guaranty, or dealing of any kind now existing or later entered into between Merchant and SPS or any subsidiary or affiliate, whether Merchant's obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event such ACH does not fully reimburse SPS and Bank for the amount owed, Merchant will immediately pay SPS and Bank such amount, 6.12 Costs. Merchant will be liable for and will indemnify and reimburse SPS and Bank for all costs paid or incurred by SPS or Bank in the enfbrcement of this Agreement, including but not limited to attorneys' and investigators fees, or in collecting any amounts due from Merchant or resulting from any breach by Merchant of this Agreement. ARTICLE VII- MISCELLANEOUS '7.01 Waiver, Failure by Bank or SPS to enforce one or more of the provisions of this Agreement shall not constitute a waiver of the right to enforce the same or other provision in the future. The waiving party must sign all waivers. 7.02 Notices. All notices and other communications required or permitted under this Agreement shall be deemed delivered when sent by e-mail or mailed, postage prepaid, addressed as follows: If to SPS: If to Bank: Sage Payment Solutions BMO Harris N.A. 12120 Sunset Hills Rd STE 500 111 W. Monroe Reston, Virginia 20190 Chicago, Ii 60603 Attn: Chief Financial Officer Attn. Customer Service If to Merchant, at the address provided as the billing address and to the contact listed on the Application or e-mail. 7.03 Choice of Law: Jurisdiction. This Agreement and all matter related thereto shall be construed in accordance with the laws of the Commonwealth of Virginia except those rules relating to conflicts oflaws. Any action or proceeding arising out of or related to this Agreement shall be brought only in a court located in located in Fairfax County, Virginia. Each party expressly consents to the jurisdiction of such courts. 7.04 Entire Agreement: Assignability, This Agreement, including the Application, these Terms and Conditions of Merchant Application and any supplementary documents indicated herein, expresses the entire understanding of the parties with respect to its subject matter and except as provided herein, may be modified only in writing executed by all parties. This Agreement may be assigned by SPS and Bank, but may not be assigned by Merchant, directly or by operation of law, without the prior written consent of Bank and SPS. In the event, for whatever reason, Application does not meet standard underwriting criteria, and satisfies only sub-standard underwriting criteria, Merchant acknowledges the completed Application may be forwarded to an alternative Member processor ffir review and approval. If Merchant nevertheless assigns this Agreement without such consent, the Agreement will be binding on the assignee. This Agreement shall be binding upon and inure to the benefit of the parties' respective successors and permitted assigns. '7.05 Credit and Financial Inquiries: Inspections. (a) Merchant authorizes Bank and SPS to make, at any time, any credit inquiries which either may consider necessary to accept or review acceptance of this Agreement or investigate Merchant's deposit or Card acceptance subsequent to acceptance of this Agreement. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, partners, principal owners or officers. If requested to do so by Bank or SPS, Merchant shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Bank or SPS may consider necessary to perform initial or periodic reviews of Merchant's financial stability and business practices; (b) Merchant may honor Cards only at locations approved by SPS and Bank. Additional locations may be added, subject to SPS and Bank's written approval. All current and future locations are bound by the terms and conditions of this Agreement. Either Merchant or SPS may delete any location by providing notice as provided in this Agreement; (c) Merchant agrees to permit Bank or SPS at any time from time to time, to inspect locations to confirm that Merchant has or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records and license or permit (where necessary) to conduct its business, However, nothing in this Section shall be deemed to waive Merchant's obligation to comply in all respects with the terms of this Agreement; (d) Representatives of Bank or SPS may, during normal business hours, inspect, audit and make copies of Merchant's books, accounts, records and files pertaining to any Transaction. 7.06 Marketing of Non-Bankcard Services by SPS. From time to time, SPS may offer to Merchant certain additional products and services which may or may not be related to the processing of Transactions. Merchant consents to receipt of promotional materials via email and fax regarding such other products and services. 7.07 Attorneys' Fees. Merchant will be liable for and will indemnify and reimburse bank and/or SPS for all attorneys' fees and other costs and expenses paid or incurred by Bank and/or SPS in the enforcement of this Agreement, or in collecting any amounts due from merchant to Bank and/or SPS or resulting from any breach by Merchant of this Agreement. 7.08 American Express Card Acceptance. In addition to other applicable provisions of this Agreement, the following provisions apply to Merchant's acceptance of American Express Cards: (a) This Agreement governs Merchant's acceptance of American Express Cards under American Express's "OptBlue Program". If and VS` hen the Transactions submitted by American Express Cardholders exceed the charge volume eligibility criteria for the OptBlue Program, American Express may require Merchant to convert to a direct Card Acceptance Agreement with American Express. If this occurs, upon such conversion, (i) Merchant will be bound by American Express's then-current Card Acceptance Agreement; and (ii) American Express will determine the pricing and other fees payable by Merchant tinder the Card Acceptance Agreement; (b) Merchant's participation in the OptBlue Program is subject to the approval of American Express. Merchant authorizes SPS and/or its affiliates to submit Transactions to, and receive settlement on such Transactions from, American Express on behalf of Merchant; (c) Merchant shall not assign to any third party any payments due to it for American Express Card Transactions, and all indebtedness arising from such Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Merchant may sell and assign future receivables to SPS, its affiliated entities and/or any other cash advance funding source that partners with SPS or its affiliated entities; (d) American Express shall have third-party beneficiary rights, but not obligations, to enforce the terms of this Agreement applicable to American Express Card acceptance against Merchant; (e) Merchant may opt out of accepting American Express Cards under this Agreement by providing 30 days' notice to SPS without directly or indirectly affecting its rights to accept other Payment Brand Cards; (0 Except as provided in Section 7.08(g), SPS may disclose to American Express information regarding Merchant and Merchant's Transactions to American Express, and American Express may use such information to (i) perform its responsibilities in connection with American Express Card acceptance, (ii) promote American Express, (iii) perform analytics and create reports, and (iv) for any other lawful business purposes, including commercial marketing communications purposes within the parameters of American Express Card acceptance, and to provide important transactional or relationship communications from American Express. American Express may also use such inffirmation about Merchant obtained in connection with this Agreement at the time of setup to screen and/or monitor Merchant in connection with American Express marketing and administrative purposes; (g) Merchant may opt-out of receiving American Express commercial marketing communications about products and services by selecting the opt-out option on its Application or subsequently by providing written notice to its primary relationship contact at SPS. Merchant may continue to receive such communications from American Express after opting out while American Express Sage Merchant Agreement Page 8 of 9 Revision 20150806 PLEASE NOTE: The complete BANKCARD Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. • updates its records to reflect h choice; Cardholder for any American Express Transaction unless a Chargeback has been exercised, Merchant has fully paid for such Chargeback, and it otherwise has the right to do so. 7.09 Sie-nature. Merchant represents and warrants that the perscin executing this Agreement is duly authorized to bind Merchant to all provisions of this Agreement, and that such person is authorized to execute any documents and to take any action on behalf of Merchant, which may be required by SPS now or in the future. Merchant will execute a separate Entity Certification, as set out belmv, if requested to do so by SPS and Bank. 7.10 Force Majeure. The delay or inability of party to peribrin its obligations hereunder When required (other than Merchant's payment obligations) if caused by event.s of Force Majeure, as defined herein, shall not constitute a breach or default and shall not subject such party to liability to any other party so long as such Force Majeure event exists. Force Majeure events shall include, without limitation, civil disturbantJes, epidemics, natural disasters, wars, acts of terrorism, acts of CIod, economic downturn and all other sudi events outside the control of the parties that make it impossible for one party to comply with its obligations hereunder. 7.11 General. If any provision of this Agreement is illegal or unenfin-ceable, the invalidity of that provision will not affect any of the remaining priwisbms and this Agreement will be construed as if the illegal provision is not contained in ale Agreement. Merchant is responsible for its employees' actions while in its employ. The parties (Jo not intend to confer any benefits on any person or entity other than Merchant, Bank and SI'S. Article 1, Sections (3.02, 3M4, Article V, Article VI, Article VII and any other provision that by their nature should survive termination will survive expiration or termination of this Sage Merchan Agreement Page 9 of 9 Revision 20150806 PLEASE NOTE. The complete BANKCARD Merchant Agreeniu'nt includes these terms and condition,s and an application on three '3,l addi pages. MERCHANT AGREEMENT BETWEEN CITY OF YAKIMA AND SAGE PAYMENT SOLUTIONS AMENDMENT TO TERMS AND CONDITIONS The Terms and Conditions to the Merchant Agreement by and between Sage Payment Solutions, Inc. ("SPS") and City of Yakima ("Merchant") are amended and modified as follows: 1. The Effective Date of this Amendment is January 25, 2016. 2. Article 7.03 shall be deleted in its entirety and replaced with the following: "This Agreement and all matter related thereto shall be construed in accordance with the laws of the state in which the original defendant in any action between the parties resides (as shown by the addresses of this Agreement) except those rules relating to conflicts of law. Any action or proceeding arising out of or related to this Agreement shall be brought only in a court located in the state in which the original defendant in any action between the parties resides." This Amendment shall be governed by all the terms and conditions of the Agreement. In cases of a conflict between the language herein and the Agreement, this Amendment shall prevail. This Amendment, including attachment hereto, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, both written and oral, with respect to such subject matter. Neither Party has entered into this Amendment by reason of or in reliance on any representations of fact or opinion that are not expressly set forth herein. Except as expressly set forth herein, the Agreement, and each and every provision thereof, shall remain in full force and effect. IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have executed this Agreement as of the date set forth above. Sage Payment Solutions, Inc. City of Yakima By: By: Name: Name: Title: Title: 3 Old tAead Road VIRTUAL CHECK MERCHANT PROCESSING APPLICATION ~It Mb AI 75ovi Sate 300 Referral: l'illrleari. VA 22102 1 (BOO:, 26', .,0240 Lead Source: None SAGE PAYMENT SOLUTIONS i Office: Invoice Cloud, Inc. Office Phone: 7818483733233 Application ID: 211778 Application Date: 11/23/2015 10:05:58 AM Contractor Name: Carolyn Ambrose Association: Invoice Cloud, Inc. General Information Type of Ownership: Government (Fed,St,Local) Business Open 1/1/1900 Existing MID: Legal Business Name: City of Yakima Business Name: City of Yakima Mailing/Billing Address: 129 N 2nd St Location Address: 129 N 2nd St City: Yakima state: WA Zip 98901 City: Yakima State WA Zip 98901 Phone: (509) 575-6070 Fax: (509) 576-6364 Phone: (509) 575-6070 Fax (509) 576-6364 Contact: Jeff Cutter Email: Jeff.cutter@yakimawa.gov Customer Service Number: Federal Tax ID: 916001293 D & B: Web Site https://www.yakimawa.gov/ General Comments: Utility MCC Code 4900 & Please apply for the Utility program Tax Information Name (as it appears on your Federal Tax Return): City of Yakima Federal Tax ID: 916001293 State Filed: WA Type of Ownership: Government (Fed,St,Local) „...., L1 I CERTIFY THAT I AM A FOREIGN ENTITY! NON-RESIDENT ALIEN Eg I CERTIFY THAT I AM PROVIDING AUTHORIZATION FOR THE ELECTRONIC ISSUANCE OF IRS FORM 1099 Owner/Officer 1 50% Owner/Officer 2 0% Trade Reference Name: Jeff Cutter Name: Name: Title. Interim City Manager Title: Title: Address: 129 N 2nd St Address: Address: City: Yakima State: WA City: State: City: State: Zip: 98901 Phone: (509) 575 Zip: Phone: Zip: Phone: Email: Email: Email: SSN: 999-90-0990 DOB: SSN: DOB: Underwriting Profile Type Of Business: MOTO Seasonal: False Seasonal High Months: Business Description: Utility Return Policy: Other Days Until Product Delivery: 0 *Company has obtained written authorization from the consumer to debit/credit consumer's depository account. **Company has obtained verbal authorization from the consumer to debit/credit consumer's depository account, but does not have wntten authorization. Annual Volume: $2,328,480.00 Average Ticket: $140.00 Highest Ticket: $125,000.00 *Written: 100% **Non-Written: 0% Merchant: 20% Consumer: 80% Authorization to ACH (must include voided business check) Bank Name: gra Phone: 111111111111111W City: Yakima State: WA Zip: 98902 Depository Routing #: IIMIIIIIIIIIp Account #: 1111111111111111111 I Fees I Routing #: tiliiiiiiiiiii Account #: 1111.11111111110 Virtual Check Fees DeoctiPtion ' . , QtY Price. Transaction Foos Iran Fee r float . .tfilosolianoons Peas , ■ , Total: CCD Written 0.50 0.00 Statement Fee: 0.00 CCD Non-Written 0.50 0.00 Minimum Fee: 0.00 PPD Written 0.50 0.00 File Fee: 0.00 PPD Non-Written 0.50 0.00 Reject Fee: 15.00 WEB 0.50 0.00 Gateway Fee: 0.00 ARC I 0.50 0.00 Maintenance Fee: 0.00 Collection of Startup Fees wit be via ACH - Merchant drafted by Sage Payments Billing Cycle : Monthly Virtual Check Originators IMPORTANT NOTES: APPLICATION FEE INCLUDES CREATION OF UP TO FIVE (5) ORIGINATOR ID'S AS INDICATED BELOW. FEES WILL BE ASSESSED FOR ADDITIONAL ORIGINATOR ID'S. A VOIDED CHECK FOR EACH BANK ACCOUNT LISTED BELOW MUST BE ATTACHED. .Description Tye Comments Disbursement Fee Reject Execution of Agreement By signing this agreement, the company certifies to Sage that it is authorized to sign this agreement. This agreement, together with the terms and conditions attached hereto, and incorporated herein by reference, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements. The company hereby agrees to abide by all the provisions of this agreement. 1. All of the Company's application and expedite (if applicable) fee(s) will be non- refundable if Company cancels the Agreement before credit approval and /or installation. 2. This Agreement is not considered received until all documentation requirements and requests have been fulfilled by the Company. 3. The Signatory hereby gives permission to Sage to access his /her credit history via Trans Union, Equifax or other credit - reporting agency. 4. An authorized Officer of the Company has read and hereby acknowledges receipt of the terms and conditions to it. In witness whereof the parties hereto have caused this agreement (including funds transfer instructions included herein) to be executed by their duly authorized representatives to be effective on the data set out below. By signing this Agreement, the Company understands that outstanding sums due and owing to Sage, will be charged daily or monthly and debited from its current depository account. Non - sufficient funds for these debits are grounds for a change in Fees or termination of this Agreement, per the attached Terms and Conditions. In the event of non - payment of any sums due, Sage reserves the right to withdraw such sums from the current depository account at any time to ensure payment of the same. By signing below, the Company represents that the information it has provided on this Agreement is complete and accurate, Company Name: SAGE PAYMENT SOLUTIONS OWNER PARTNER ./ OFFICER 1 OWNER PARTNER ./ OFFICER 2 Signature: Signature: Signature: Printed Name: Printed Name: Printed Name: Title: Title: Title: Date: Date: Date: As a primary inducement to Sage to enter into this Agreement, I, the undersigned Guarantor, absolutely and unconditionally guarantee the full and prompt payment of all Company's indebtedness and liabilities, and the performance of all Company's obligations, to Sage under this Agreement (the "Obligations "). I agree that upon Company's default I will pay Sage, in accordance with the terms and conditions of this Agreement, all fees and other sums payable by Company under this Agreement. Further, I acknowledge and agree that (i) this Guaranty will continue until the Obligations are fully and finally performed; (ii) this is a guaranty of payment and performance and not of collection, and in no case will Sage be required to attempt collection from Company or pursue any other remedy or action before collection from me; (iii) the provisions of the Agreement may be modified or waived without notice to or consent by me and without invalidating this Guaranty; (iv) this Guaranty will be governed by and construed in accordance with the laws of the Commonwealth of Virginia; (v) Sage is authorized to investigate any and all credit information pertaining to this Guaranty; (vi) I will be responsible for all legal fees and other costs that Sage incurs enforcing this Guaranty. Signature: Social Security #: !Affiliation with Company: "" EARLY TERMINATION: If Company cancels this Agreement during the term or any agreed upon extension term, applicable early termination fees shall be due Sage. See Article V Section 5.01 of the attached terms and conditions for additional details. Site Inspection By the signature below, signatory verifies that (i) he /she has physically inspected the Business Premises; and (ii) the information stated in this Agreement is correct, to the best of his/her knowledge and is represented by her /his Company. Sales Representative - Signature: 'Sales Representative - Printed Name: I Date: 11101111111111 4emliseph doratipisior TERMS AND CONDITIONS FOR SAGE PAYMENT SOLUTIONS VIRTUAL CHECK The following terms and conditions govern Company's use of Sage Payment Solutions' ACH Processing Services (the "Services") far its virtual check products. The term "Sage" means "Sage Payment Solutions", a Virginia corporation. 'Pie term "Company" refers to the merchant receiving the Services. These are the terms and conditions referred to in the Sage Payment Solutions Virtual Check Merchant Processing Agreement attached hereto, the provisions of which are incorporated herein by reference. These terms and conditions and the attached application constitute the entire agreement between Sage and Company with respect to the subject matter hereof. Sage is providing an Internet gateway to enable Company's customers to pay for goods and services by means of the Automated Clearing House ("ACH") process. This Agreement and Sage's Web site includes important disclosures and regulatory information that are associated with the Services. The Services allow Company to collect periodic payment receivables from its customer accounts ("Customer Accounts") through Sage Virtual Check and/or transfer credits to its customers through use of the ACH process; Sage will act as Company's agent to initiate credit, debit and adjustment Entries through an Originating Depository Financial Institution (the "Bank"), all pursuant to the terms of this Agreement, the provisions of Tide 31 Code of Federal Regulations Part 210 and the operating rules of the National Automated Clearing House Association, as amended from time to time (collectively referred to herein as the "Rules"). Company agrees that it entering into this Agreement, that it will be bound by the Rules. Company understands that in order fbr the Services, including future services that may be available, to perform, Company is solely responsible for the hardware, software or other technology it uses to access the Services, which will be processed via ACH. Sage will not be responsible for any service difficulties resulting from Company's failure to possess technology adequate to use the Services. TERMS & CONDITIONS the Rules, or if any Debit Entries originated by you for two (2) years after termination or revocation of were unauthorized, Sage reserves the right to charge such authorization, or in the case of an authentication I. Definitions. Except as otherwise defined herein, the amount of such Debit Entries to the Authorized made via telephone, the Internet or other on-line capitalized terms shall have the meanings provided in Account. All Net Settlement Amounts (as defined in network, the Company must retain a copy of the the Rules. The term "Entries" shall have the meaning Section 16 below) shall be deposited into the account authorization and a recorded record of the provided in the Rules and shall also mean the data at the financial institution designated in the authentication. The foregoing authorizations shall be received from the Company hereunder from which Application attached hereto to which Sage and the provided to Sage upon request. The Company agrees Sage prepares Entries. Company are parties ("Authorized Account"). (b) that, at its cost, it will periodically review its Credits. Provided the Company delivers the necessary authentication techniques to ensure that its security '2. Transmittal of Entries by Company. The data in accordance with the processing instructions measures are adequate, and make all necessary Company will use reasonable efforts to provide and in an acceptable format and deposits immediately changes, to ensure that all authentication techniques computer readable information that is accurate, available funds into the Agent Account (as hereinafter are in accordance with all applicable laws, regulations current and in the fbrmat specified in the Rules and in defined) in an aggregate amount equal to the Entries and statutes and the Rules. Sage may, at its option, conformance with other requirements set fbrth by to be transmitted, Sage shall initiate credit Entries to initiate a pre-notification entry for any ACH Sage, as the same may be amended from time to time, electronically credit Customer Accounts few settlement transaction. If Sage chooses to transmit pre- necessary to prepare debit and credit Entries in order on the Effective Entry Date (or next banking day in notification entries, it will not initiate live dollar to effect collection from arid credit to Customer the event that the Effective Entry Date falls on a non- entries until at least six (6) banking days following the Accounts of the following types: ARC', PPD, WEB, banking day at the customer's depository institution). settlement date of the pre-notification entry. Such CCD, TEL, POP, RCK. The Company shall update Unless such funds are timely received, Sage shall be notice shall be provided to the Bank in the finimat and such information from time to time in order that it under no obligation to transmit the related Entry (ies). on the medium provided in the Rules. After Sage has remains current and accurate at all times. The Once an Entry is transmitted by Sage, the Company received notice that any such notification has been Company hereby authorizes Sage to initiate ACH shall have no right to the cancellation or amendment rejected by a receiving financial institution, or that a credits, debits and adjustments to the Authorized of any Entry after its receipt by the Bank. flowever, receiving financial institution will riot receive Entries Account. This authorization will remain in effect after Sage shall use reasonable efforts to act on a request by without having first received a copy of the termination of this Agreement until all of the the Company for cancellation of such Entry (ies) prior authorization signed by its customer, Sage will not Company's obligations to Sage have been paid in full, to crediting a Receiver's account. Except in the case of initiate any Entry to such customer unless, and until Confirmation from Sage of a credit or debit ACH payroll entries, the total dollar amount of Credit Entries the Company provides Sage and the receiving financial transaction does not constitute a Warranty that the transmitted by the Company to the Bank on ant one day institution with such authorization within the time Company will be paid for the transaction. shall not exceed Three Thousand U.S. Dollars ($3,000f limits provided by the Rules. If individual ACH The Company acknowledges and agrees that, if an transaction values or the monthly total of the to Processing and Transmittal of Entries. (a) Entry describes its customer or other Receiver Company's ACH Debits and Credits exceeds Sage's Debits. Sage shall process Entries received from the inconsistently by name and account number, payment standard limits, Company may request Sage to Company to conform with the file specifications set of the Entry transmitted to the Receiving Depository increase these limits by agreeing to additional forth in the Rules, transmit suc Entries to the Bank Financial Institution might be made by the Receiving underwriting review to be performed by Sage. If for re-transmittal t th AC'H Op era t or or other Depository Financial Institution (or by the Bank in the Rejects or Returns exceed two percent (2.0%) of total location designated by th Bank, a ll in accordance with case of an "on-us" Entry) on the basis of the account monthly transaction volume, Sage reserves the right to the Rules and applicable regulations and operating number even if it identifies a person different from the (i) adjust transaction fees and rates, (ii) require circulars adopted or issued by the Federal Reserve named customer or Receiver, and that the Company's reserves, or additional reserves as defined in this Board or applicable Federal Reserve Bank, as mm effect obligation to pay the amount of the Entry to Sage is Agreement; or (iii) to cease providing the Services from time to time, E E or File shall be not excused in such circumstances. Company agrees described hereunder if Sage in its sole discretion delivered to Sage by an au representative of that Sage may withhold any amounts due to the determines that the Services provided to the Company the Company in accordance with the processing Company from subsequent payments in the event of an hereunder contribute to an unacceptable volume of instructions attached hereto. Provided the Company overpayment by Sage to Company. ACH returned items. .Additional factors that may delivers the necessary data in accordance with the determine adjustment of fees, potential reserves or processing instructions and in an acceptable format, 4. Authorizations; Prenotifications. The Company cancellation include average sale amount, processing Sage shall initiate debit Entries to electronically debit will obtain written authorizations for each requested volume, credit volume, and other factors that may Customer Accounts kir settlement on the Effective Entry that it has received from its customers, or, in the affect the risk of fraud or merchant instability, in the Entry Date (or next banking day in the event that the event of an authorization for a TEL entry, the sole discretion of Sage. Effective Entry Date falls on a non-banking day at the minimum information requirements in accordance with customer's depository i however if any the Rules must be provided to Sage. The Company Is' cc s/ s/ • evo 'ons o A or'zat' or.i Debit Entries are returned to Sage in accordance with shall Mrther retain the original or a microfilm record Reserve Account. Sage shall notify the Company by Sage Merchant Agreement Page I of I Rev11.11 ELIVO IF: The complete VIRTUAL CHECK Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. fax or electronic transmission of the receipt of a or reinitiate an Entry without confirmation that the GatewayTM (the "Sage Marks"). The Company will use returned Entry from the ACH Operator no later than Entry is accurate. the Sage Marks only in a manner and form approved two (2) business days after such receipt. Except fin- an by Sage. Company is granted by Sage the right to use Entry transmitted by the Company in accordance with 6.01 IRS Withholdings and Reporting. Section the Sage logo unaltered on its web-site in the Section S, Sage shall have no obligation to re-transmit 6050W of the Internal Revenue Code ("Code") reasonable representation of the Company's use of the a returned Entry or reinitiate an Entry without further requires payment providers and third party payment Services until such time as this Agreement is evidence of valid authorization, All returned Entries are networks, such as Sage, to report payment settlement terminated and solely in the connection with the each subject to an additional $25.00 return fie, unless amounts to the Internal Revenue Service ("IRS") for solicitation of its customers' agreement to utilize the otherwise stated in this agreement. Company hereby each Company processing through Sage. Company Services provided hereunder. All right, title, ownership agrees, if so requested by Sage, to maintain a reserve shall verify its identity by providing Sage with a Tax and interest in and to the Sage Marks remain with with Sage with a sufficient balance in Sage's sole Identification Number (TIN") such as a Social Sage, and upon termination of this Agreement, the discretion to cover Returns, NSF, reversal of ACH Security Number (SSN) or Employer Identification Company shall have no further right to the use of the transactions and similar debits and fees payable Number (EIN) fbr each Company Account. In the Sage Marks, shall immediately cease all use and hereunder and any other liabilities of Company as event Company fails to provide its TIN, Sage will display thereof, and shall return to Sage all such specified in Section 16 ("Reserve Account"). Company place a restriction on Company's Account and may marketing materials provided by Sage and remaining authorizes Sage to establish and maintain reserves in restrict the receipt of funds into Company's Account, in Company's possession. If at any time during the such Reserve Account by means of offset from daily or withhold a percentage of payments deposited into term of this Agreement, Sage determines that the settlement activity or provide such reserve funds Company's Account in order to satisfy the backup Company is not utilizing the Sage Marks in accordance requested by Sage within 48 hours of the request. withholding requirements of the IRS. with the terms of this Agreement, Sage may demand Company will pay to Sage the amount of any returned that the Company cease and desist from all use of the debit that cannot, for any reason in part or in whole, be '7. Rejected Entries. Sage shall use reasonable Sage Marks and return all such marks directly to Sage. debited against Company. Company understands that efforts to notify the Company of a rejected Entry by The Company is fully responsible fbr the content of its electronic funds transfers can be "charged back" or fax or electronic transmission no later than the web site and for the advertising and promotion "returned" against the Originating Financial following business day such Entry would have been through any media of all of its offerings. The Depository Institution's account for up to 60 days transmitted by Bank or ACH Operator to Sage. Company certifies and represents to Sage that it is the following the statement date of the receiving Regardless of the reason for a rejected Entry, it shall owner or that it has full right and authority to use and institutions' transaction notification to customers' be the responsibility of the Company to remake such disseminate all information, data, graphics, text, video, accounts for debit and credit entries. If the Company Entries or provide sufficient data for Sage to remake music or other intellectual property which either forms wishes to revoke an authorization, (other than for a the same; provided, however, that Sage shall remake a part of its web-site, which is provided by Company to POP, TEL and Single Entry WEB entries) it must do such Entries in any case where such rejection by the its consumers, or which is used by Company in its so directly with Sage and provide an executed affidavit ACH was due to mishandling of such Entries by Sage advertising or promotion. to the RDFI that the debit entry has been revoked and sufficient data is available to Sage to permit it to directly with Sage. Sage's Bank may request a copy of remake such Entries. The Company shall retain and 10. Acceptance of ACH Rules. In order to facilitate the affidavit within one (1) year of the date on which provide Sage on request all information necessary to the Company's compliance hereunder with the Rules the adjustment entry was initiated by the RDFI. remake any file of Entries for three (5) days after the and with applicable law, subject to the limitations set midnight of the Settlement Date, forth in Paragraph 6, Sage may provide certain 6. Compliance with Laws and the Rules; materials, and forms ("Materials") and may make Notification of Change. The Company and its 8. Reversals; Erroneous Entries, The Company available appropriate personnel as it deems appropriate principals understand the Rules, agree to be bound by, shall be responsible for monitoring the accuracy of all to assist the Company to maximize their use of the and shall comply with the Rules. Furthermore, the transmittals and of notifying Sage of any duplication Services offered hereunder. The Company further Company agrees to comply with all applicable Federal, or error requiring correction. The Company shall not acknowledges that it is an Originator under the Rules. state and local laws, rules and regulations as amended knowingly transmit any false information. Sage may All Materials are provided solely for the convenience from time to time regarding the subject matter of this assess a processing fee of up to $500 per occurrence for of the Company, and Sage makes no representation or Agreement, including but not limited to the Federal each instance in which it proves that the Company has warranty as to the legal sufficiency thereof and Fair Credit Reporting Act and Regulation E, 12 CFR knowingly transmitted false information as part of an assumes no liability therefore, and Company 205 et. seq., Regulation CC, Articles 4 and 4A of the Entry. If the Company discovers that any Entry it has represents and warrants that it will have its own legal Uniform Commercial Code, and the Electronic Funds initiated was in error, it must notify Sage within 24 counsel review the sufficiency thereof and will rely on Transfer Act. The specific duties of the Company hours of the discovery of the error. If such notice is its own business and legal judgment in determining to provided in this Agreement in no way limit the received no later than three hours prior to the ACH what, if any, extent it wishes to utilize Sage Materials, foregoing undertaking. The Company agrees that it receiving deadline, Sage will utilize reasonable efforts All such forms shall be printed at the sole expense of will promptly respond to all Reports of Possible ACH to initiate a reversing Entry or stop payment of any the Company and all unused Materials shall be Rules Violation to Sage. Company bears the final "on us" Entry within the time limits provided by the returned to Sage or destroyed by the Company upon responsibility to ensure that its consumers' policies and Rules. If such notice from the Company is received termination of this Agreement. procedures meet the requirements of the Rules. The after the time provided above, Sage would utilize its Company agrees to consult with its counsel regarding reasonable efforts on behalf of the Company. Except D. Pats Retention: Verification and Security. The compliance of its authorization and payment for an Entry transmitted by the Company in Company shall retain data on file adequate to permit procedures and its compliance with the Rules, and accordance with Section 5, Sage shall have no liability remaking of Entries fbr seven (7) banking days shall not rely on Sage for any advice with respect to for and shall be indemnified (including attorneys' fees following the date of their transmittal by Sage as compliance with the Rules, or any Federal, state, or and costs) by the Company for its effiirts to affect an provided herein, and shall provide such data to Sage local rule, statute, regulation or law. adjusting Entry or stop payment. upon its request. For Internet-initiated Entries, the Company represents and warrants that it shall ensure Sage shall make reasonable attempts to provide the 9. Marketing Materials: Use of Sage Marks; that the financial information it receives is protected Company with a notification of change ("NOC") from Company's Marks, The Company shall have a non- by security practices and procedures that include (i) the ACH Operator within two (2) business days exclusive license to use Sage marketing materials physical security to protect against theft, tampering or following the Bank's receipt of same, if the Bank has containing the Sage name, service mark, symbols, and damage, (ii) personnel and access controls to protect provided Sage with the NOC. Sage shall, following logos associated therewith as may be supplied by Sage against unauthorized access and use, (iii) network receipt of an NOC, reserve the right not to re-transmit from time to time including but not limited to security to ensure secure capture, storage and EFT Cash® SageTM, Sage Virtual CheckTM, and Sage distribution, (iv) 128-bit encryption technology for Sage Merchant Agreement Page 2 of 2 Rev 11.11 PLEASE NOTE: The complete VIRTUAL CHECK Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. Internet transactions, (v) commercially reasonable are limited to those types of credit and debit Entries SERVICE, ITS USE AND THE RESULTS OF fraud detection systems, (vi) procedures to veri set forth in Schedule A, and is for an amount which, as SUCH USE. Without limiting the foregoing, Sage routing numbers and authenticate consumer identity, of the applicable Settlement Date, will he due and specifically disclaims any warranty (i) that the service and procedures to establish credit-worthiness and owing, has been specified to be paid, or is a correction will be uninterrupted or error-free, (ii) that defticts will exposure limits for its customers. Company agrees of a previously transmitted erroneous Entry; (1) except be corrected, (lit) that security methods employed will that it shall conduct or have conducted annual audits as otherwise notified by Company, each of the be sufficient, or (iv) the service will be correct, accurate to ensure that the financial inftirmation it obtains from Customer Accounts is a "consumer account" within the or reliable. In addition, Sage shall be excused from its customers is protected by security practices and meaning of Federal Reserve Board Regulation E; (m) hiding to transmit or delay in transmitting an Entry if procedm-es that include, at a minimum level, the all transactions submitted hereunder are bona fide; (n) such transmittal would result in the Bank's having practices set forth in (i) through (iii), hereinabove. For Company has never been terminated for cause from an exceeded any limitation upon its intra-day net funds each Entry initiated in response to a telephone agreement in which the Services contemplated herein position established pursuant to Federal Reserve authorization from a consumer. Company represents are provided; (o) this Agreement, constitutes the legal. Board guidelines or if Sage otherwise would cause the and warrants that its has employed commercially binding and enforceable obligation of Company, violation of any provision of any risk control program reasonable procedures to verify the identity (ff the enforceable in accordance with its terms; (p) each cif the Federal Reserve Board or any rule or regulation consumer; and that it has utilized commercially Entry conforms in all respects to the Rules and of any other US governmental regulatory authority. reasonable procedures to verify that each routirig applicable law; and (q) Company authorizes Sage to Sage's liability for loss of interest resulting from its number is valid. audit its records to confirm compliance with this unexcused error or delay shall he calculated by using a Ag,reement. All Sage instructions as set forth in this rate equal to the average Federal Funds rate at the 12. Representations and Warranties of Company. Agreement or in any schedule shall be complied with Federal Reserve Bank of New York for the period The Company represents, warrants and agrees that (a) by Company. Non-compliance may result in immediate involved. At Sage's option, payment of such interest All Mit:irritation contained in this Agreement, any implementation of non-compliance fines and/or may be made by crediting the Authorized Account application or in any other documents delivered to cessation of service by Sage. resulting- lion any claim for which Sage is liable for Bank and/or Sage in connection therewith is true and under this Section 13. complete and properly reflects (ompany's business, 13. Liability; Limitations on Liability. Sage shall be financial condition and principal partners, owners or responsible only for perfbrming the Services expressly 14. Indemnification. The Company shall be liable for officers; (1)) this Agreement (i) has been duly provided for in this Agreement, and may be liable only and shall indemnify and hold harmless Sage and the authorized, and delivered by the Company; (ii) is in full fiir its gross negligence in performing those Services. Bank and their employees, officers, directors, agents force and effect; (iii) the person executing this Sage shall not lie responsible Mr the acts or omissions and affiliates from and against any claim, loss, damage, Agreement is duly authorized to bind the Company to of the Company or its owners, directors, officers, penalty, cost or expense (including attorneys fees and all provisions of this Agreement; and (iv) such person employees or representatives (including without expenses) resulting or arising from (a) any breach of is authorized to execute any and all documents and to limitaticm the amount, accuracy, timeliness of any of the representations, warranties and agreements take any action on behalf of the Company which may transmittal or due authorization of any Entry received of the Company contained in this Agreement, (b) any be required by Sage now or in the future; (c) this from the ( ompany) or those of any other person, claim of any person W ha ts oe ve r of whatever nature Agreement does not violate any law or conflict with including, w ithout limitation, the Bank, any Federal arising out of this Agreement, and fbr all attorneys' any other agreement tr., which the Company is bound; Reserve Bank or transmission or communications fees and other costs or expenses paid by Sage in the (d) There is no action, suit or proceeding pending or facility, any Receiver or Receiving Depository enforcement cif this Agreement, including, but not threatened is if decided adversely would impair Financial Institution (including without limitation the limited to those resulting from any transaction Company's ability to carry on its business substantially return of an Entry by such Receiver or Receiving processed under this Agreement and/or (c) any costs as it is now being conducted; (e) the Ctimpany has 1)epository Financial Institution), and no such person or expenses incurred by Sage related to any obtained all necessary regulatory approvals, licenses shall be deemed Sage's agent Sage also will not be bankruptcy filing that Company may file. If any of the and certificates to provide any services that it intends responsible for any loss, liability or delay caused by Entries that are on Sage's system belonging to to offer; (f) the Company shall perform its obligations fires, earthquakes, wars, civil disturbances, power Company are subpoenaed by legal process or under this Agreement in accordance with all surges or failures, acts of government, labor disputes, otherwise, Sage shall use reasonable efforts to notify applicable laws and regulations, regardless of the failures in communication, networks, legal constraints (. If (..1ompany does not respond in a timely nature of the laws and regulations, and shall continue or other events beyond its control. Because of the manner, and/or thirty (So) days elapses from Sage's to comply with all applicable laws and regulations that difficulty of determining actual damages for any failure receipt of subpoena, Sage may produce records in may apply to it in the future; (g) Company shall be of Sage to perfbrm its obligations under this accordance with the subpoena. Notwithstanding the bound by and comply with the Rules as in effect front Agreement, the parties agree that the extent of any ftiregoing, should Company request that Sage not time to time and acknowledges that Entries may not thunages hereunder, if any, shall be limited in amount produce any records in response to a valid subpoena, be initiated that violate the Rules, or laws of the to the greater of the Minimum Transaction Processing Company shall indemnify and pay all costs incurred, United States; (h) it shall pay all taxes and other Fees or the amount of the Transaction Processing including attorneys' fees that Sage incurs in opposing charges imposed by any governmental authority on Fees based upon the Schedule of Charges (Fees) the subpoena. Sage shall estimate the costs arid the Services provided under this Agreement (i) each attached to this Agreement paid for the one calendar attorneys' fees of opposing the subpoena, and Company person shown as the Receiver on an Entry received by month preceding the month in which the loss shall pay those fees and costs to Sage BEFORE Sage Sage from Company has authorized the initiation of occurred. IN NO EVENT SHALL SAGE BE has any obligation to take any action to oppose the such Entry and the crediting and/or debiting of such LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, subpoena. If Company fails to pay the costs and fees in person's account in accordance with the Rules, by PUNITIVE OR INDIRECT LOSS OR DAMAGE advance, Sage shall have no obligation to oppose the Regulation E or other applicable law and this WHICH THE COMPANY MAY INCUR OR subpoena and may respond to it in accordance with its Agreement in the amount and on the Effective Entry SUFFER IN CONNECTION WITH THE terms. Should Company pay Sage's fees and costs in Date shown on such Entry, and the Company will PERFORMANCE OF THIS AGREEMENT, advance, Sage shall oppose the subpoena but does not retain all of such authorizations for a period of six (1:1) INCLUI)ING ANY LOSS CM DAMAGE FROM warrant whether it will be successfhl in dcUng so, years after their termination or revocation or fbr such SUBSEQUENT WRONGFUL DISHONOR longer period as may be required by the Rules or RESULTING FROM SAGE's ACFS OR 15. Compensation. The Company shall pay Sage the applicable law and provide a copy to Sage upon OMISSIONS PURSUANT TO THIS AGREEMENT. fees and charges for the Services rendered hereunder request; (j) such authorization is valid at the time of SAGE DISCLAIMS ALL WARRANTIES, EXPRESS in accordance with the Fees and Charges as set forth in transmittal or crediting/debiting by Sage as provided OR IMPLIED, INCLUDING THOSE OF this Agreement. Such fees and charges do not include, herein and has not been revoked by operation of law or MERCHANTIBILITY AND FITNESS FOR A and Company shall be responsible for payment of, any otherwise; (k) Entries transmitted to Sage by Company PARTICULAR PURPOSE, IN RELATION TO THE sales, use, excise, value added, utility or other similar Sage Merchant Agreement Page 3 of 3 Rev11.11 P/,/,;;4.11",ENOTE: The eomplew VIRTUAL CHFA.1(Alercliate Agreement includes these terms.and conditions and an application ,117 three (3) additional pages. taxes relating to the Services provided for herein, and and Sage shall be excused from any fiffther termination by Company will not affect Sage's rights any fees or charges provided fbr in any related account performance hereunder. or obligations arising before the termination. agreement with the Bank. The lees and charges are subject to change upon $0 days' prior written 17. Term, Except as otherwise provided herein for 19. Status of Sage. The parties hereto acknowledge notice (by electronic or U.S. mail) to the Compan y:. earlier termination, the initial term of this Agreement and agree that Sage is acting solely in the capacity of Upon receipt of any notice of fee increase, the shall be three (3) years commencing as of the Effective data processing agent for the Company, has no Company may, by written notice to Sage given at least Date hereof and shall be automatically renewed for responsibility for providing any funds to the Bank to to days prior to the effective date of any such fee additional two (2) year terms, unless either party gives cover any Entry it transmits on behalf of the increase, terminate this Agreement as set forth in to the other party written notice of its intention not to Company, and the Company, any accounts established Paragraph 17. In such event no cancellation fees will renew at least ninety (90) days prior to the expiration by the Company, hereunder or otherwise, and/or the be charged. The effective date of termination shall be of the then current term. The effective date ("Effective Guarantor(s) are liable for any and all compensation no later than 90 days Wowing the date of the Date") shall be defined by the date the contract is due Sage for its Services as agent. Company's notice. Any such fee increase shall not be ratified by Sage. Upon receipt of any material effective with respect to the Company during the inoqicatirm to this elgreement as setfrirth in Paragraph 15, 20, Security Procedures; Confidentiality. The notice period. If Company does not terminate the time Company may terminate the Agreement within seven Company agrees to comply with the procedures Agreement, it shall be deemed to have accepted the fee calendar days after delivery of notice of termination to Sage. established by Sage or the Bank for security as are and cost increase. Notwithstanding the fbregoing, this Agreement shall communicated to it either orally or in writing and will not terminate beyond the term of Sage's agreement contact Sage immediately if it has reason to believe 16. Collection of Amounts from Debit Entries and with the Bank fbr the origination of ACH entries. that confidentiality has been or is likely to be breached. E,Etk. Concurrent with the execution and delivery of this Agreement, Sage shall have established a fiduciary lit. Default; Termination. Sage shall have the right 21. Notices. All notices, requests and other account and a ledger account on its books in to immediate termination of this Agreement if the communications under or in connection with this connection with its master account, titled "Sage Company's representations and warranties contained Agreement shall be in writing and shall be given by Corporation/Fiduciary" (the "Agent Account") with in this Agreement are not true and correct both on the electronic mail, facsimile transmission, express carrier the Bank(s) into which funds received from Customer day made and at any time during time term of this or United States registered or certified mail, addressed Accounts shall be credited and from which funds may Agreement. Sage may also cancel any account for any to the applicable party or parties at the address he debited by Sage ibr settlement in accordance with customer of Company or Company if it participates in provided to the other or as set forth above, or at such this Agreement. Within 5 days of the Settlement Date any illegal, unethical or other unacceptable behavior other address as may he designated by notice as of the respective debit Entries initiated by it hereunder that Sage, in its sole discretion, deems to adversely provided herein. Any such communication shall be (or such longer period as may lie required by Sage as a reflect on Sage's reputation, and either party may effective upon its receipt. condition to acceptance of this Agreement, which shall terminate this Agreement if the other party (i) is in be specified in a written notice to the Company), Sage default of any obligation under this Agreement (which 22. Binding Agreement; Third Party Beneficiary. shall direct the remittance to the Company of the shall include nonpayment of fees arid charges) and such The terms of this Agreement shall be binding upon aggregate amount of such debit Entries less (i) all default has continued for fifteen (15) days following and inure to the benefit of each party hereto and its applicable fees and charges payable t Sage un thi no an d opportunity to cure, (ii) files or suffers the respective successors and permitted assigns. The Agreement or required by Sage to fund or replenish filing of a petition for relief under the bankruptcy laws Company agrees that the Bank shall be a third party the reserve established hereunder and (ii) the amount or (iii) makes an assignment of all or substantially all beneficiary of this Agreement and, without limitation of rejected Entries and returns of debit Entries (the of its assets for the benefit of creditors. Any as to other rights as a third party beneficiary, shall be "Net Settlement Amount"). Periodic and other single termination of this Agreement shall not affect any of entitled to rely on the representations, warranties and charges payable hereunder shall be deducted from the the obligations of either party arising prior to such agreements of the Company as if made in a written first transmittal of Entries received during the period termination. Notice of termination must be given in agreement directly between the Bank and the in which the fee or charge is payable. From time to writing by Company. Upon termination of this Company. Except as expressly contemplated by time, Sage shall debit the Agent Account, the Agreement by Company during the Initial Term or herein, this Agreement shall not benefit or create any Authorized Account, or related clearing account for any Renewal Term, Company shall pay to Sage a right or cause of action in or on behalf of any person fees and charges earned under this Agreement and for Termination Fee of Twenty-Five ($25.00) Dollars other than the parties hereto and the Bank. any returns not previously deducted. The Company for every month remaining in any such term authorizes Sage and Bank to debit via ACH the Agent ("Termination Fee"), except that a Termination 23. Amendment. From time to time Sage may Account, the Authorized Account, the Reserve Fee shall not be owed to Sage in the event of a amend any of the terms and conditions contained in Account, any other account the Company has with termination for a fee increase as set forth in this Agreement, including without limitation, any Sage, an affiliate or subsidiary of Sage, Bank or at any Paragraph is. Upon termination as set forth in this cut-off time, any business day in order to comply with other financial institution as an offset for any amount Paragraph, the Company shall notify Sage of the modifications to applicable laws and regulations and the Company owes under this Agreement or under any effective date of such termination, and any processing the Rules. Such amendments shall become effective other contract, note, guaranty, (Sr dealing of any kind fees due to Sage must immediately be paid upon notice upon receipt of notice by the Company or such later now existing or later entered into between the of cancellation. Sage shall retain in the Agent Account date as may be stated in Sage's notice to the Company. Company and Sage or any subsidiary or affiliate, for a period of no less than one hundred fifty (160) whether the Company's obligation is direct, indirect, days following termination an amount in reserve 24. Assignment. The Company may not assign this primary, secondary, fixed, contingent, joint or several, sufficient, in its sole discretion, to pay for any items Agreement or any of the rights or obligations In the event such ACH does not fully reimburse Sage returned subsequent to the effective date of hereunder, without the prior written consent of Sage, and Bank for the amount owed, the Company will termination to cover return items. Accounts are not which consent shall not be unreasonably withheld. immediately pay Sage and Bank such amount. The closed until the account balance is paid in full. Sage is Company acknowledges that this Agreement is an hereby authorized to draft from Company's bank 25. Entire Agreement; Headings. The terms and agreement pursuant to which Sage is extending the account the amount of all fees due upon cancellation. conditions contained herein together with time Agent Company financial accommodations within the During this period, Sage shall forward to time Company Account, application, Authorized Account and any meaning of Section $65(c) of the Bankruptcy Code. return item verifications as they are received. At the exhibits hereto constitute the entire agreement In the event Company becomes a debtor in any expiration of such period, Sage shall return any between the parties hereto relating to the subject bankruptcy or similar proceeding, this Agreement remaining funds owed the Company or invoice the matter hereof and supersede any prior agreement or cannot be assumed or enforced by any other person Company for any return item ite amount still due it. Any understanding and except as set forth herein, may only be modified in writing executed by all parties. In time Sage Merchant Agreement Page 4 of 4 Rev 11.11 pLEAsE NOM The complete VIRTUAL CHECK Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. event of any inconsistency between the terms of this deemed an original, but all of which together shall be all varying transfers, the consumer may elect to Agreement and any Materials/Instructions provided deemed to be one and the same instrument. A receive notice only when a transfer does not fall within by Sage, the terms of this Agreement shall govern. fiacsimile signature will be binding and legal in all a specified range of amounts; or, alternately, the Headings contained in this Agreement are used fin- respects as if it Were an original signature to the consumer may elect to receive notice only when a reference purposes only and are not a part and shall Agreement. transfer differs from the most recent transfer by more not affect the construction or interpretation of this than an agreed upon amount. Agreement. 3 I. Consent to E-Mail Communications. By entering into this Agreement with Sage the Company 35. Attorneys Fees. Company will be liable for and 26. Credit and Financial Inquiries. (a) Company is consenting to the receipt of electronic mail ("e-mail") will indemnify and reimburse Sage fin- all attorneys' authorizes Sage to make, at any time, any credit from Sage. fees and other costs and expenses paid or incurred by inquiries which either may consider necessary to Sage in the enforcement of this Agreement, or in accept or review acceptance of this Agreement 3'2. Non-Compliance. Non-compliance With the collecting any amounts due from the Company to Sage subsequent to Sage's acceptance of this Agreement. terms of this Agreement: could result in immediate or resulting from any breach by Company of this Such inquiries shall include, but are not limited to, a implementation of non-compliance fines to Company Agreement. credit check of the business including its proprietor, and/or cessation of the service described hereunder by partners, principal owners or officers. If requested to Sage. 36. Security Interest. TO SECURE ALL do so by Sage, Company shall provide the written OBLIGATIONS OF COMPANY TO SAGE consent of any person for Which an inquiry has been or 33. Appointment as A.:ent. The Company desires to ARISING FROM THIS AGREEMENT, COMPANY is to lie made if such person has not executed this effect settlement of credits and debits from the clearing HEREBY (;RANTS SAGE A LIEN AND Agreement and will provide any financial statements account of Sage by means of ACH as anticipated by SECURITY INTEREST IN ALL TRANSACTIONS income tax and business tax returns and other Agreement. In accordance with this desire, the AND ITEMS SUBMI 1 1 El) FOR PROCESSING, financial information as Sage may consider necessary Company authorizes Sage to initiate debit and credit ALL RIGAITS RELATED TO THIS AGREEMENT, to perfbrm initial or periodic reviews of Merchant's entries to the Authorized Account. By signing this INCLUDING WITHOUT LIMITATION ALL financial stability and business practices authorization, the Company states that it has authority AMOUNTS DUE COMPANY, ALL DEPOSITS to agree to such transactions and that the Authorized REGARDLESS OF SOURCE, TO ANY OF 27. Severability. In the event perfbrmance of the Account indicated is a valid and legitimate account for COMPANY'S ACCOUNTS ESTABLISHED AS SET Services required hereunder would result in a violation the handling of these transactions. This authority is to FORTH IN THIS AGREEMENT OR OF ANY of any present or future statute, regulation or remain in effect until Sage receives written notice from PARTY SIGNING THIS AGREEMENT government policy to which Sage is subject, then any the Company withdrawing it. This authorization is for PERSONAL GUARANTY (THE "SECURED provision of this Agreement the peridrinance of is the payment of fees, returns, credit collections, and ASSETS"). Said security interest may be set off or would constitute such a violation shall be deemed null disbursements. The Company also certifies that the otherwise be exercised by Sage without notice or and void, and this Agreement shall be deemed appropriate authorizations are in place to allow the demand of any kind. The exercise of this security amended to the extent necessary to comply with such Company to authorize this method of settlement. interest shall be addition to any other rights of Sage statute, regulation or policy, and Sage shall incur no under the Unifbrrn Commercial Code, this Agreement, liability to the Company as a result of its performance 34. Authorization and Notification Requirements. applicable laws or in equity. The parties specifically in accordance with any such amendment. Transactions processed through the Automated acknowledge and affirm that pursuant to the Uniform Clearing House (ACH) are strictly controlled by Commercial Code of Virginia, this Agreement shall 2S. Survival. All representations, warranties, Governmental Regulations and monitored by the constitute a security agreement and that Sage has a covenants, and agreements of the Company contained Federal Reserve. The Company must have appropriate general lien upon the accounts described in this herein shall survive the execution, delivery and authorization from Receivers for initiation of Entries. Agreement and right of offset against all funds that termination of this Agreement. The following directive is offered to promote accuracy may be due to Company, which shall stand as one and standardization for authorization requirements: A continuing collateral security for the timely 29. Governing, Law; Jurisdiction; Waiver of Jury statement authorizing the Originator (Company) to performance of Company's obligations to Sage. Sage Trial. This Agreement shall be governed by and initiate credit or debit entries to the consumer's shall also have the right to require the Company to construed in accordance with the laws of the account and authorizing the RDFI to accept and post furnish such other and different security, as Sage shall Commonwealth of Virginia without giving effect to there to such account including (i) Account and deem appropriate in its sole discretion in order to choice of law rules. The Company consents to the Routing numbers must be accurately stated; (ii) date secure Company's obligations under this Agreement. jurisdiction and venue of the United States District and signature(s) are required, except that in the case if Company agrees to execute any documents or take any Court for the Eastern District of Virginia and the Internet or other electronically initiated transactions, actions required in order to comply with and perfect courts of general jurisdiction of Fairfax County, there must be evidence of similar authentication by the any security interest under this Section at Company's Virginia as applicable, to the exclusion of all other Receiver ; (iii) Originators (Companies) must ensure cost. To the extent permitted by law, Company forums. EACH PARTY HERETO IRREVOCABLY that the consumer is completely aware of the nature of authorizes Sage to execute any financing statement or WAIVES ALL RIGHTS IT MAY HAVE TO the product or service that he or she is purchasing; (iv) other documents relating to this security interest. TRIAL BY JURY IN ANY ACTION, provisions that permit the consumer to terminate the Company represents and warrants that no other party PROCEEDING OR CLAIM OF ANY NATURE authorization by written notification to the Originator has a security interest or lien in the Secured Assets. ARISING OUT OF, BY VIRTUE OF, OR IN ANY (Company) in such time and manner to afford the WAY CONNECTED TO THIS AGREEMENT, Originator (Company) and the RDFI reasonable 37. Force Majeure. Sage shall not have any ANY DOCUMENT EXECUTED IN opportunity to act on such notification. In an responsibility and shall incur no liability fiiir any failure CONNECTION HEREWITH, ANY application where the debit amount varies, specific to carry out, or any delay in carrying out, any of its AMENDMENT OR SUPPLEMENT HERETO OR additional requirements apply. If a pre-authorized obligations under this Agreement resulting from acts, THERETO, OR ANY OF THE TRANSACTIONS debit transfer varies from a previous transfer relating omissions, or inaccuracies of third parties not under its CONTEMPLATED HEREBY OR THEREBY. to the same authorization or from a fixed pre- reasonable control, acts of God (including, but not COMPANY ACKNOWLEDGES THAT THE authorized amount, the Originator (Company) must limited to, fire, floods or adverse weather conditions), FOREGOING WAIVER IS KNOWING AND mail to the customer or deliver to him written notice of labor difficulty, legal constraint, war, terrorism, the VOLUNTARY. the amount and scheduled date of the transfer at least unavailability or interruption of transmission or ten (to) calendar days before the scheduled transfer communication facilities or utilities, equipment or 30. Counterparts. This Agreement may be executed date. Additionally, if the Originator (Company) other technological failure, emergency conditions (Sr in any number of counterparts, each of which shall he informs the consumer of the right to receive notice of any other cause beyond its reasonable control. Sage Merchant Agreement Page 5 of 5 Rev 1(.11 PLEASE NOTE: The complete VIRTUAL (ALEC I( Merchant Agreement includes these terms and conditions and an application on three (3) additional pages. VIRTUAL CHECK AGREEMENT BETWEEN CITY OF YAKIMA AND SAGE PAYMENT SOLUTIONS AMENDMENT TO TERMS AND CONDITIONS The Terms and Conditions to the Virtual Check Agreement by and between Sage Payment Solutions, Inc. ("SPS") and City of Yakima ("Company") are amended and modified as follows: 1. The Effective Date of this Amendment is January 25, 2016. 2. The first two sentences of Article 29 shall be deleted in their entirety and replaced with the following: "This Agreement and all matter related thereto shall be construed in accordance with the laws of the state in which the original defendant in any action between the parties resides (as shown by the addresses of this Agreement) except those rules relating to conflicts of law. Any action or proceeding arising out of or related to this Agreement shall be brought only in a court located in the state in which the original defendant in any action between the parties resides." This Amendment shall be governed by all the terms and conditions of the Agreement. In cases of a conflict between the language herein and the Agreement, this Amendment shall prevail. This Amendment, including attachment hereto, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, both written and oral, with respect to such subject matter. Neither Party has entered into this Amendment by reason of or in reliance on any representations of fact or opinion that are not expressly set forth herein. Except as expressly set forth herein, the Agreement, and each and every provision thereof, shall remain in full force and effect. IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have executed this Agreement as of the date set forth above. Sage Payment Solutions, Inc. City of Yakima By: By: Name: Name: Title: Title: