HomeMy WebLinkAboutCity of Tamarac Resolution R-2006-204Temp. Reso. #11079
October 6, 2006
Rev. #1 10/17/06
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2006-
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE OFFICIALS TO ACCEPT AND
EXECUTE AN AGREEMENT WITH NOVA
INFORMATION SYSTEMS AND WACHOVIA BANK,
N.A. FOR THE PROVISION OF MERCHANT CREDIT
CARD PROCESSING SERVICES PROVIDING FORA
TERM OF FOUR (4) YEARS WITH ONE (1)
ADDITIONAL ONE (1) YEAR RENEWAL TERM;
PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City currently utilizes merchant credit card processing services
to a provide residents with the ability to pay bills and fees with credit and debit cards;
and
WHEREAS, the current merchant credit card processing services agreement
will expire on October 31, 2006; and
WHEREAS, new technologies in the merchant credit card processing market
have advanced the ability to provide integrated solutions for point -of -sale transactions
at various City locations, including the introduction of more internet based capabilities;
and
WHEREAS, it is in the best interest of the City to transition to newer technologies
which will provide greater efficiencies and improve overall customer service to the
residents of the City; and
WHEREAS, City administration officials determined that it would be beneficial to
solicit proposals for merchant credit card processing services in order to enhance and
Temp. Reso. #11079
October 6, 2006
Rev. # 1 10/ 17 /06
Page 2
improve the City's credit card service capabilities; and
WHEREAS, on August 2, 2006, request for proposal No. 06-29R was solicited to
nine (9) banks (incorporated herein by reference and on file in the office of the City
Clerk); and
WHEREAS, submittals were received from the following four (4) banks on
August 30, 2006:
1. Fifth Third Bank
2. National City Bank
3. Regions Bank and NOVA Information Systems
4. Wachovia Bank N.A., and NOVA Information Systems
WHEREAS, the evaluation committee consisting of the Controller, Revenue
Analyst, Customer Service Supervisor, Parks and Recreation Administrative Services
Manager, facilitated by the Purchasing and Contracts Manager conducted an extensive
evaluation of the proposals and short listed them to the following top ranked banks (see
the short-list ranking included herein as Exhibit 1):
1. Wachovia and NOVA Information Systems
2. Fifth Third Bank
WHEREAS, the proposal and presentation provided by NOVA Information
Systems and Wachovia Bank, N.A. scored the highest on the final evaluation on the
basis of the evaluation criteria, including cost of services, quality of response, high
quality of customer service, experience in governmental banking and merchant credit
card processing; and
WHEREAS, the Merchant Credit Card Processing Services Selection Committee
after due consideration ranked NOVA Information Systems and Wachovia Bank, N.A.,
Temp. Reso. #11079
October 6, 2006
Rev. #1 10/17/06
Page 3
considered the most competitive, as its first choice (see Exhibit 2); and
WHEREAS the new services will enable the City to upgrade our current software
for enhanced services such as customer telephone payments and automated interface
with HTE customer information systems; and
WHEREAS, the Merchant Credit Card Processing Services Selection Committee
entered into negotiations with NOVA Information Systems and Wachovia Bank, N.A.;
and
WHEREAS, the Director of Financial Services and the Purchasing and Contracts
Manager recommend the appropriate City officials be authorized to enter into an
agreement with NOVA Information System and Wachovia Bank, N.A. to provide
merchant credit card processing services estimated at an annual cost of $47,000; and
WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be
in the best interest of the citizens and residents of the City of Tamarac to provide for the
acceptance and execution of the Agreement for the provision of merchant credit card
processing services with NOVA Information Systems and Wachovia Bank, N.A for a
period of four (4) years with one (1) one (1) year renewal option, a copy of said
Agreement is included herein as Exhibit 3).
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this
Resolution upon adoption hereof.
SECTION 2: That the appropriate City Officials are hereby authorized to accept
Temp. Reso. #11079
October 6, 2006
Rev. #1 10/17/06
Page 4
and Award Request for Proposal No. 06-29R, and execute an Agreement with NOVA
Information Systems and Wachovia Bank, N.A. for the provision of merchant credit card
processing services for a period of four (4) years with one (1) one (1) year renewal
option, (Exhibit 3).
SECTION 3: All resolutions or parts of resolutions in conflict herewith are hereby
repealed to the extent of such conflict.
SECTION 4: If any clause, section or other part or application of this Resolution
is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 5: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this day of [06 , 2006.
ATTEST:
MARION SWENSON, CMC
CITY CLERK
I HEREBY CERTIFY that
I have approved this
RESOLUTION as to form.
2 MWILM-17207
MAYOR
RECORD OF COMMISSION VOTE:
MAYOR FLANSBAUM-TALABISCO
Air-
DIST 1: VIM PORTNER
DIST 2: COMM ATKINS-GRAD
DIST 3: COMM. SULTANOF I Air
DIST 4: COMM. DRESSLER ZTE:
J
1
I
TR 11079 EXHIBITl.
10/5/2006 Merchant Credit Card Services RFP #06-29R
Committee Evaluation Totals
Proposer's Name:
Fifth/Third
National
Regions
Wachovia
Bank
city
National
Bank /
No Conflict of Interest
NO
Bank/
Nova
Adhered to the Instructions
NO- Non-
Nova
Responsive
QUALITY OF RESPONSE (UP TO POINTS
10)
Controller
9
N/A
10
9
Rev. Analyst
10
N/A
10
10
Cust. Serv. Sup.
10
N/A
10
10
Admin. Serv. Mgr -Parks
9
N/A
10
9
SERVICES TO BE PROVIDED (UP TO 15 POINTS)
Controller
15
N/A
15
15
Rev. Analyst
15
N/A
15
15
Cust. Serv. Sup.
11
N/A
15
15
Admin. Serv. Mgr -Parks
14
N/A
15
15
QUALIFICATIONS/EXPERTISE
(UP TO 35 POINTS)
Controller
32
N/A
33
33
Rev. Analyst
33
N/A
35
35
Cust. Serv. Sup.
31
N/A
31
34
Admin. Serv. Mgr -Parks
29
N/A
30
35
FEE PROPOSAL
(UP TO 15 POINTS)
36 N/A 27
Controller
40
Rev. Analyst
36
N/A
27
40
Cust. Serv. Sup.
36
N/A
27
40
Admin. Serv. Mgr -Parks
36
N/A
27
40
TOTAL POINTS
Controller
92
0
85
97
Rev. Analyst
94
0
87
100
Cust.-Serv. Sup.
88
0
83
99
Admin. Serv. Mgr -Parks
88
0
82
99
362
1 0
1 337 1
395
Average Score 90.5 0 84.25 98.75
TOTAL
RANKING
Controller
2
4
3
1
Rev. Analyst
2
4
3
1
Cust. Serv. Sup.
2
4
3
1
Admin. Serv. Mgr -Parks
2
4
3
1
2
4
3
1
U:\2006 BIDS\06-29R -- Merchant Credit Card Services\06-29R EVAL TOTAL WORKSHEET TEMPLATE for Shortlist.xls
TR 11079 EXHIBIT 2
10/5/2006 Merchant Credit Card Services RFP #06-29R
Committee Evaluation Totals
Proposer's Name:
Fifth/Third
Wachovia
Bank
Bank/Nova
No Conflict of Interest
No
No
Adhered to the Instructions
Yes
Yes
QUALITY OF RESPONSE (UP TO POINTS 10)
Controller
7
10
Rev. Analyst
6
10
Cust. Serv. Sup.
9
9
Admin. Serv. Mgr -Parks
5
10
SERVICES TO BE PROVIDED (UP TO 15 POINTS)
Controller
10
15
Rev. Analyst
10
15
Cust. Serv. Sup.
9
14
Admin. Serv. Mgr -Parks
10
15
QUALIFICATIONS/EXPERTISE (UP TO 35 POINTS)
Controller
30
35
Rev. Analyst
30
35
Cust. Serv. Sup.
25
35
Admin. Serv. Mgr -Parks
30
35
FEE PROPOSAL
(UP
Controller
36
40
Rev. Analyst
36
40
Cust. Serv. Sup.
36
40
Admin. Serv. Mgr -Parks
36
40
TOTAL POINTS
Controller
83
100
Rev. Analyst
82
100
Cust. Serv. Sup.
79
98
Admin. Serv. Mgr -Parks
81
100
325
398
Average Score 81.25 99.5
TOTAL RANKING
Controller
2
1
Rev. Analyst
2
1
Cust. Serv. Sup.
2
1
Admin. Serv. Mgr -Parks
2
1
2
1
U:\2006 BIDS\06-29R -- Merchant Credit Card Services\06-29R FINAL EVAL TOTAL WORKSHEET TEMPLATE for
Shortlist.xls
NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
INFORMATION SYSTEMS'.
TERMS OF SERVICE
These Terms of Service are entered into as of the Effective Date by and among the City of
Tamarac, Florida, NOVA Information Systems, Inc. and Wachovia Bank, National
Association. The TOS and the other portions of the Agreement govern the Merchant's
participation in the Program.
Section A — Definitions
1) DEFINITIONS.
a) ACH: Automated Clearing House.
b) Agreement: The TOS, any Addendum, the Merchant Application, the Merchant
Operating Guide, and any other guides or manuals provided to Merchant from time to
time, and all additions to, amendments and modifications of, and all replacements to any
of them, as applicable.
c) American Express: The American Express Company.
d) Authorization: Merchant's request for approval of a Transaction by an Issuer.
Authorization is initiated by accessing the authorization center by telephone or electronic
terminal.
e) Authorization Code: The code sent by an Issuer in response to an Authorization request.
f) Automated Clearing House (ACH): The funds transfer system governed by the rules of
NACHA. ACH allows financial institutions to clear interbank entries electronically.
g) Bankruptcy Proceeding: With respect to a Person means (i) that the Person or any
subsidiary of such Person shall: (a) commence a voluntary case under the Bankruptcy
Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in
effect); (b) file a petition seeking to take advantage of any other applicable laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts or any other similar conservatorship or receivership
proceeding instituted or administered by any regulatory agency or body; (c) consent to or
fail to contest, in a timely and appropriate manner, any petition filed against it in an
involuntary case under such bankruptcy laws or other applicable laws or consent to an
Involuntary Bankruptcy Proceeding; (d) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of possession by, a
trustee, receiver, custodian, liquidator, or similar entity of such Person or of all or any
substantial part of its assets, domestic or foreign; (e) admit in writing its inability to pay
its debts as they become due; (f) make a general assignment for the benefit of creditors;
(g) make a conveyance fraudulent as to creditors under any applicable law; or (h) take
any action for the purpose of effecting any of the foregoing; or (ii) that a case or other
proceeding shall be commenced against the Person or any subsidiary of such Person in
any court of competent jurisdiction, or through any regulatory agency or body, seeking:
(a) relief under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy
laws (as now or hereafter in effect) or under any other applicable laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition, or
adjustment of debts; or (b) the appointment of a trustee, receiver, custodian, liquidator or
the like of such Person or of all or any substantial part of the assets, domestic or foreign,
of such Person or any other similar conservatorship or receivership proceeding instituted
or administered by any regulatory agency or body.
h) Card Not Present: The processing environment where the Payment Device is not
physically presented to the Merchant by the Cardholder as the form of payment at the
time of sale. Card Not Present includes, but is not limited to, Mail Order, Telephone
Order, and Electronic Commerce Transactions.
i) Card Present: The processing environment where the Payment Device is physically
presented to the Merchant by the Cardholder as the form of payment at the time of the
Transaction.
NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
!NFO MAT!()N SYSTEMS'
j) Cardholder: (i) the individual in whose name a Payment Device has been issued; and (ii)
any individual who possesses and uses a Payment Device and who purports to be the
person in whose name the Payment Device was issued or whose signature appears on the
Payment Device as an authorized user.
k) Chargeback: A sales Transaction disputed by a Cardholder or Issuer pursuant to the
Payment Network Regulations.
1) Confidential Information: All information or items proprietary to NOVA or Member, of
which the Merchant obtains knowledge or access as a result of the Merchant's
relationship with NOVA and Member, including, but not limited to, the following types
of information and other information of a similar nature (whether or not reduced to
writing): scientific, technical, or business information, product makeup lists, ideas,
concepts, designs, drawings, techniques, plans, calculations, system designs, formulae,
algorithms, programs, software (source and object code), hardware, manuals, test
procedures and results, identity and description of computerized records, identity and
description of suppliers, customer lists, processes, procedures, trade secrets, "know-how,"
marketing techniques and material, marketing and development plans, price lists, pricing
policies, and all other financial information.
m) Convenience Fee. Any fee or charge for the use of a Payment Device in a Transaction.
n) Credit Card: A: (i) Visa card or other card bearing the symbol(s) of Visa U.S.A., Inc. or
Visa International, Inc. (including Visa Gold cards); (ii) a MasterCard card or other card
bearing the symbol(s) of MasterCard International Incorporated (including MasterCard
Gold cards); or (iii) any card bearing the symbol of any other Credit Card Association.
o) Credit Card Associations: (i) Visa U.S.A., Inc.; (ii) MasterCard International
Incorporated; (iii) American Express; (iv) Discover; (v) Diners; (vi) JCB; and (vii) any
other organization or association that hereafter contracts with NOVA and/or Member to
authorize, capture, and/or settle Transactions effected with Credit Cards issued or
sponsored by such organization or association, and any successor organization or
association to any of the foregoing.
p) Credit Card Rules: All applicable rules and operating regulations of the Credit Card
Associations, and all rules, operating regulations, and guidelines for Credit Card
Transactions issued by NOVA from time to time, including, without limitation, all
amendments, changes and revisions made thereto from time to time.
q) Credit Transaction Receipt: A document, in paper or electronic form, evidencing a
Merchant's refund or price adjustment to be credited to a Cardholder account.
r) Debit Card: A card with a magnetic stripe bearing the symbol(s) of one or more EFT
Networks which enables the holder to make a payment by authorizing an electronic debit
to the Cardholder's designated deposit account, including PIN -based, online debit
Transactions.
s) Debit Card Rules: All applicable rules and operating regulations of the EFT Networks,
and all rules, operating regulations, and guidelines for Debit Card Transactions issued by
NOVA from time to time, including, without limitation, all amendments, changes, and
revisions made thereto from time to time.
t) Demand Deposit Account (DDA): The commercial checking account at a financial
institution acceptable to NOVA and Member designated by Merchant to facilitate
payment for Transactions, Chargebacks, returns, adjustments, fees, fines, penalties, and
other payments due under this Agreement.
u) Diners: Diners Club International Ltd.
v) Discover: Discover Financial Services, Inc.
w) EBT Card: A card utilized for electronic benefits transfers.
x) Effective Date: The date set forth in the signature block of NOVA herein.
y) EFT Networks: (i) Interlink Network Inc., Maestro U.S.A., Inc., Visa, and MasterCard;
and (ii) any other organization or association that hereafter authorizes NOVA and/or
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 did 10.12.06 FINAL
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Member to authorize, capture, and/or settle Transactions effected with Debit Cards, and
any successor organization or association to any of the foregoing.
z) Electronic Check Service Association: Visa, NACHA, and any other organization or
association hereafter designated as an Electronic Check Service Association by NOVA
from time to time.
aa) Electronic Check Service Rules: All applicable rules and operating regulations of the
Electronic Check Service Associations, and all rules, operating regulations, and
guidelines for Electronic Check Service Transactions issued by NOVA from time to time,
including without limitation, all amendments, changes, and revisions made thereto from
time to time.
bb) Electronic Commerce Transaction: A Transaction that occurs when the Cardholder
uses the Internet to make a payment to a Merchant or a Merchant uses the Internet to
submit the Transaction for processing to NOVA.
cc) Electronic Gift Cards (EGC): A special card purchased by a customer that is
redeemable for in-store merchandise or services.
dd) Interchange: The clearing and settlement system for Visa and MasterCard Credit Cards
and Debit Cards where data is exchanged between NOVA and the Issuer.
ee) Issuer: The financial institution or other entity that issued the Credit Card or Debit Card
to the Cardholder.
ff) JCB: JCB International Co., Ltd.
gg) Laws: All applicable state, federal and local laws, rules, regulations, orders and decrees,
as amended from time to time.
hh) Loyalty Cards: A special card given to customers who are frequent shoppers of an
establishment pursuant to which the customer may receive a discount or other reward.
ii) Mail Order/Telephone Order (MO/TO) Transaction: For MO, a Transaction that
occurs when the Cardholder uses the mail to make a payment to a Merchant and for TO, a
Transaction that occurs when the Cardholder uses a telephone to make a payment to a
Merchant.
jj) MasterCard: MasterCard International Incorporated.
kk) Member: Wachovia Bank ,National Association. The Member may be changed by
NOVA at any time.
11) Merchant (or you): The City of Tamarac, Florida, and the affiliated entities listed on
Schedule B attached hereto, jointly and severally. Entities may be added to Schedule B
by substituting a new Schedule B that is in writing and signed by all parties, and
Merchant may add additional accounts or locations that are owned by Merchant without
the need to execute a new Schedule B.
mm) Merchant Application: Any document containing information regarding Merchant's
business that is submitted to NOVA and Member in connection with Merchant's
application for processing services, including documents submitted by Merchant as a part
of the bid process, if applicable.
nn) Merchant Operating Guide: The operating manual provided by NOVA to its
Merchants. The Merchant Operating Guide may be amended from time to time by NOVA
in its sole discretion.
oo) National Automated Clearing House Association (NACHA): The national association
that establishes standards, rules, and procedures to enable depository financial institutions
that are members of regional ACH associations to exchange electronic payments.
pp) NOVA: As applicable, NOVA Information Systems, Inc., a Georgia corporation, and any
affiliate or subsidiary of NOVA Information Systems, Inc. that provides processing
services to a Merchant related to Transactions. NOVA is a registered member service
provider of each Member.
qq) Payment Device: Any device used for the purpose of obtaining credit or debiting a
designated account including a Credit Card, Debit Card, and any other financial
transaction device, including an Electronic Gift Card, check, (whether converted into
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
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electronic form or used as a source document for an electronic fund transfer), EBT Card,
stored value card, "smart" card, or other device created to be used for the purpose of
obtaining credit or debiting a designated account, that is now or hereafter effected
through Transactions with Merchants.
rr) Payment Network: Any Credit Card Association, EFT Network, Electronic Check
Service Association, governmental agency or authority, and any other entity or
association that issues or sponsors a Payment Device.
ss) Payment Network Regulations: Individually and collectively, as the context may
dictate, the Credit Card Rules, the Debit Card Rules, and/or the Electronic Check Service
Rules.
tt) Person: Any individual, firm, corporation, business trust, partnership, governmental
agency or authority, or other entity and shall include any successor (by merger or
otherwise) of such entity.
uu) POS Device: A terminal, software or other point -of -sale device at a Merchant location
that conforms with the requirements established from time to time by NOVA and the
applicable Payment Network.
vv) Prepaid Cards: A reloadable card having available funds to the Cardholder paid for in
advance.
ww) Program: The Payment Device processing services and other related products and
services received by Merchant pursuant to the Agreement.
xx) Reserve Account: The account established pursuant to Section (13)(6).
yy) Reserve Amount: The amount established pursuant to the calculation set forth in Section
(B)(6).
zz) Reserve Event: The events designated in Section (13)(6).
aaa)Retrieval Request: A request initiated by a Cardholder or Issuer that requires the
Merchant to produce a legible copy of the Cardholder's signed Transaction Receipt
within a specified period of time.
bbb) TOS: These Terms of Service and all additions to, amendments, and modifications of,
and all replacements to the TOS, as applicable.
ccc) Transaction: Any action by a Cardholder using a Payment Device and a Merchant that
results in activity on the Cardholder's account (e.g., payment, purchase, refund, or return).
ddd) Transaction Receipt: The paper or electronic record evidencing the purchase of goods
or services from, or payment to, a Merchant by a Cardholder using a Payment Device.
eee) Value Added Services: Any product or service provided by a third party unaffiliated
with NOVA or Member to assist Merchant in processing Transactions, including without
limitation, Internet payment gateways, integrated POS Devices, inventory management and
accounting tools, loyalty programs, fraud prevention programs, and any other product or
service that participates, directly or indirectly, in the flow of Transaction data.
fff) Visa: Visa U.S.A., Inc.
2) RULES OF CONSTRUCTION. Capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the TOS. Singular terms shall include the
plural, and vice versa, unless the context otherwise requires. The words "hereof," "herein,"
and "hereunder," and words of similar import when used in the TOS shall refer to the TOS
and not to any particular provision of the TOS. The word "day" shall mean "calendar day",
unless specifically stated otherwise. In the event of a conflict between the terms of Section B
- General Provisions, and any subsequent section of the TOS, the terms of the subsequent
section shall prevail.
Section B - General Provisions
3) ACCEPTANCE OF PAYMENT DEVICES. Merchant shall determine in accordance with
the Payment Network Regulations and the Agreement which types of Payment Devices it will
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
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agree to accept as payment for goods and services. The terms and conditions for the
acceptance of Credit Cards are set forth in the TOS. The terms and conditions for the
acceptance of any Payment Devices or methods other than Credit Cards shall be set forth in
one or more addenda (each an "Addendum"), which shall incorporate the TOS by reference.
Each Addendum shall be governed by the TOS, as well as by the terms set forth in the
Addendum.
4) DEPOSIT OF TRANSACTION RECEIPTS.
a) Funds.
i) Deposits. You agree that the Agreement is a contract of financial accommodation
within the meaning of the Bankruptcy Code, 11 U.S.C. Section 365, as amended
from time to time. Subject to this Section, NOVA, and Member will deposit to the
DDA all funds evidenced by Transaction Receipts complying with the terms of the
Agreement and the Payment Network Regulations and will provide you provisional
credit for such funds (less recoupment of any Chargebacks, returns, adjustments,
fees, fines, penalties, and other payments due under the Agreement). You
acknowledge that your obligation to NOVA and Member for all amounts owed under
the agreement arises out of the same transaction as NOVA's and Member's obligation
to deposit funds to the DDA.
ii) Provisional Credit. All Transaction Receipts and deposits are subject to audit and
final checking by Member and NOVA, and may be adjusted for inaccuracies or
errors. You acknowledge that all credits for funds provided to you are provisional
and subject to Chargebacks and adjustments in accordance with the Payment
Network Regulations, whether or not a Transaction is charged back by the Issuer.
Member or NOVA may elect to grant conditional credit for individual or groups of
Transaction Receipts. Final credit for Transaction Receipts will be granted within
Member's and NOVA's sole discretion.
iii) Original Transaction Receipts. Under no circumstances will Member or NOVA be
responsible for processing returns, refunds, or adjustments related to Transactions not
originally processed by Member and NOVA.
b) Chargebacks. You are fully liable to NOVA and Member for all Transactions returned
to NOVA or Member for whatever reason including all Chargebacks. You will pay
NOVA and Member for all Chargebacks. You agree to accept for Chargeback, and will
be liable to Member and NOVA in the amount of any Transaction for which the
Cardholder or Issuer disputes the validity of the Transaction for any reason. You
authorize NOVA and Member to offset from funds due the Merchant for Transaction
activity and to debit the DDA and the Reserve Account for the amount of all
Chargebacks. You will fully cooperate with NOVA and Member in complying with the
Payment Network Regulations regarding Chargebacks.
5) DEMAND DEPOSIT ACCOUNT (DDA).
a) Establishment and Authority. You will establish and maintain with Member (or with an
ACH receiving depository institution acceptable to Member) one or more DDAs to
facilitate payment for Transactions. You will maintain sufficient funds in the DDA to
accommodate all Transactions contemplated by the Agreement and all Chargebacks,
returns, adjustments, fees, fines, penalties, and other payments due under this Agreement.
You irrevocably authorize NOVA and Member to debit the DDA for Chargebacks in
accordance with the Payment Network Regulations and for returns, adjustments, fees,
fines, penalties, and any other payments due under the Agreement. You also authorize
NOVA's or Member's vendors or agents to debit the DDA for any fees due to such
vendors or agents under the Agreement. You must obtain prior consent from Member and
NOVA to change the DDA. If you do not get that consent, NOVA or Member may
immediately and without notice terminate the Agreement and may take any other action
either of them deems necessary in their discretion. NOVA and Member have the right to
rely upon written instructions submitted by you to request changes to the DDA. You may
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.0630.06 did 10.12.06 FINAL
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request from NOVA written confirmation of NOVA's and Member's consent to change
the DDA.
b) DDA. If the DDA is maintained with Member, Member will deposit all funds evidenced
by Transaction Receipts to the DDA, subject to Section (13)(4) of the TOS. NOVA and
Member have the right to delay, within their discretion, crediting the DDA with funds
evidenced by submitted Transaction Receipts. You authorize Member or NOVA to
initiate reversal or adjustment entries and initiate or suspend such entries as may be
necessary to grant you provisional credit for any entry. Member will make deposits to the
DDA pursuant to the Agreement and the ACH Authorization (defined below). To the
extent required, you authorize and appoint Member to act as your agent to collect
Transaction amounts from the Issuer. Member, in its sole discretion or at NOVA's
direction, may grant you provisional credit for Transaction amounts in the process of
collection, subject to receipt of final payment by Member and NOVA and subject to all
Chargebacks, returns, adjustments, fees, fines, penalties, and any other payments due
under the Agreement. You shall maintain sufficient funds on deposit in your DDA to pay
all items as they come due in the ordinary course of business.
c) Asserted Errors. It is the responsibility of Merchant to reconcile the statements
regarding Transaction activity received from NOVA, any Payment Network, and any
third party vendors with the statements Merchant receives for Merchant's DDA. You
must promptly examine all statements relating to the DDA and immediately notify
NOVA and Member in writing of any errors in the statement Merchant received from
NOVA. Your written notice must include: (i) Merchant name and account number; (ii)
the dollar amount of the asserted error; (iii) a description of the asserted error; and (iv) an
explanation of why you believe an error exists and the cause of it, if known. That written
notice must be received by NOVA within thirty (30) days after you receive the statement
containing the asserted error. If you fail to provide such notice to NOVA within said
thirty (30) days, NOVA and Member shall not be liable to you for any errors you assert at
a later date. You may not make any claim against Member or NOVA for any loss or
expense relating to any asserted error for sixty (60) days immediately following NOVA's
receipt of your written notice. During that sixty (60) day period, NOVA will be entitled
to investigate the asserted error, and you shall not incur any cost or expense in connection
with the asserted error without notifying NOVA.
d) Depository Institution. Merchant authorizes its depository institution to grant NOVA
and/or Member access to any and all information or records regarding the DDA. You
hereby release NOVA and Member for any action they take against the DDA or Reserve
Account pursuant to the Agreement. You also release the depository institution at which
you maintain your DDA for acting in accordance with any instruction from NOVA
and/or Member regarding the DDA.
e) ACH Authorization. You authorize Member, NOVA, and their respective vendors and
agents to initiate debit/credit entries to the DDA and the Reserve Account, all in
accordance with the Agreement. This authorization will remain in effect after termination
of the Agreement and until all of your obligations to NOVA and Member have been paid
in full. In the event you change the DDA, this authorization will apply to the new account
and you shall provide NOVA and Member such information regarding the new DDA as
they deem necessary. It may take NOVA up to ten (10) business days after NOVA's
receipt of a written notice from you to reflect in its system any change to your DDA.
6) RESERVE ACCOUNT, RECOUPMENT, AND SET-OFF.
a) Reserve Account.
i) Establishment. NOVA may establish a Reserve Account in the Reserve Amount
upon the occurrence of a Reserve Event for the purpose of providing a source of
funds to pay Member and NOVA for any and all amounts owed by you. Member and
NOVA shall have sole control of the Reserve Account.
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ii) Reserve Amount. The Reserve Amount is equal to the aggregate dollar value of:
[(average % credits to processing volume during the same period + average %
Chargebacks to processing volume during the same period) multiplied by four]
multiplied by [average monthly processing volume] plus [one month's average fees]
plus [# days delayed delivery multiplied by the average day's processing volume].
For purposes of this calculation, the number of days delayed delivery means the
number of days between the date on which the Cardholder's Payment Device is
charged and the date the Cardholder receives and is satisfied with the product.
Further, for purposes of this calculation, NOVA will determine, in its sole discretion,
the applicable period considering factors such as Merchant's sales growth and
seasonality.
iii) Reserve Event. The following will constitute Reserve Events: (a) fraudulent
activity in any monthly period that equal or exceeds one percent (1%) of Merchant's
average monthly volume over the preceding twelve (12) month period, (b)
Chargebacks in any monthly period that equal or exceed 1 % of the total dollar value
of incoming items to NOVA, (c) NOVA's reasonable belief that Merchant has
accepted deposits but has not delivered the goods or services, (d) the commencement
of a Bankruptcy Proceeding by or against you, (e) termination of the Agreement for
any reason, (f) nonpayment of amounts owed to NOVA or Member, and (g) the
occurrence of an adverse change in your financial condition.
iv) Funding. Member and NOVA may fund the Reserve Account up to the Reserve
Amount by any one or more of the following means.
(1) Member and NOVA may require you to deposit into the Reserve Account funds
in an amount determined by NOVA;
(2) Member and NOVA may debit the DDA in any amount;
(3) Member and NOVA may deposit into the Reserve Account funds they would
otherwise be obligated to pay you.
v) Use of Funds in Reserve Account. Member or NOVA may, without notice to you,
apply funds in the Reserve Account against any outstanding amounts you owe or
future amounts you will owe under the Agreement or any other agreement between
you and Member or NOVA. Also, Member or NOVA may debit the Reserve Account
to exercise their rights under the Agreement including, without limitation, their rights
of set-off and recoupment to collect any amounts due to Member or NOVA. Further,
you agree that NOVA or Member may be required to send funds in a Reserve
Account to a third party in response to a tax levy or other court order.
vi) Termination of Reserve Account. Funds held in the Reserve Account shall remain
in the Reserve Account until each of the following has occurred: (1) the Agreement
has been terminated; and (2) Merchant has paid in full all amounts owing or that
could ever be owed under the Agreement, including all Chargebacks, returns,
adjustment, fees, fines, penalties, and any other payments due under the Agreement.
In no event shall you be entitled to a return of any funds remaining in the Reserve
Account before 270 days following the effective date of termination of the
Agreement.
b) Recoupment and Set-off. Member and NOVA have the right of recoupment and set-off.
This means that they may offset any outstanding or uncollected amounts owed to them
from: (i) any amounts they would otherwise be obligated to deposit into the DDA; and
(ii) any other amounts they may owe you under the Agreement or any other agreement.
You acknowledge that in the event of a Bankruptcy Proceeding, in order for you to
provide adequate protection under Bankruptcy Code Section 362 to NOVA and Member,
you must create or maintain the Reserve Account as required by NOVA and/or Member
and either of them shall have the right to offset against the Reserve Account for any and
all obligations you may owe to NOVA and Member, without regard to whether the
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obligations relate to Transaction Receipts initiated or created before or after the filing of
the bankruptcy petition.
c) Remedies Cumulative. The rights conferred upon Member and NOVA in this section
are not intended to be exclusive of each other or of any other rights and remedies of
Member and NOVA under the Agreement, at law or in equity. Rather, each and every
right of Member and NOVA under the Agreement, at law or in equity is cumulative and
concurrent and in addition to every other right.
7) FEES; OTHER AMOUNTS OWED; TAXES.
a) Fees. You will pay Member and NOVA fees for services, supplies, and equipment in
accordance with Schedule A, Schedule of Fees. Such fees will be calculated and debited
from the DDA once each month for the previous month's activity, or will be deducted
from the funds due you under the Agreement. In addition, you will pay NOVA at its
standard rates for research including, but not limited to, research required to respond to
any third party or government subpoena, levy, or garnishment on your account. The fees
set forth in the Agreement will not be amended by NOVA for the Initial Term of the
Agreement except to pass through to you increases in interchange, assessments, or fees
imposed by a third party.
b) Other Amounts Owed. You will immediately pay NOVA or Member any amount
incurred by NOVA or Member attributable to the Agreement, including, without
limitation, Chargebacks, returns, adjustments, fees, fines, penalties (including all fines
and penalties assessed by the Payment Networks as a result of your Transaction
processing), and any other payments due under the Agreement. NOVA or Member may
debit these amounts from your DDA by ACH, and in the event such ACH does not fully
reimburse NOVA or Member for the amount owed, you will immediately pay NOVA or
Member such amount. NOVA will charge interest, as allowed by Law, on all uncollected
items that are more than thirty (30) days past due.
c) Taxes. You are also obligated to pay all taxes and other charges imposed by any
governmental authority on the goods and services provided under the Agreement. If you
are a tax-exempt entity, you will provide NOVA and Member with an appropriate
certificate of tax exemption.
8) ACCURACY OF INFORMATION; HOLD HARMLESS; LIMITATION OF
LIABILITY; PERFORMANCE.
a) Accuracy of Information. You represent and warrant to Member and NOVA that all
information provided to NOVA in the Merchant Application, in the bid process if
applicable, or otherwise in the Agreement is correct and complete. You must notify
NOVA in writing of any changes to such information, including, without limitation, any
additional location or new business at which you desire to accept payment services, type
of goods and services provided, and how sales are completed (i.e., by telephone, mail,
electronic commerce, or in person at your place of business). The notice must be received
by NOVA at least ten (10) business days prior to the change. You will provide any
additional information requested by NOVA within a reasonable time. To the extent
permitted by law, you will hold harmless Member and NOVA for all losses and expenses
incurred by Member or NOVA arising out of any such change, whether or not reported to
NOVA, or your failure to provide requested information. NOVA may immediately
terminate the Agreement upon notification by you of a change to the information in the
Merchant Application. You authorize NOVA and Member to contact credit reporting
agencies and your creditors to make inquiries and obtain reports regarding your credit
standing upon NOVA's or Member's receipt of the Merchant Application.
b) Hold Harmless. As between Merchant, NOVA and Member, Merchant will be
responsible for, and will at its own expense, defend itself against any and all suits, claims,
losses, demands or damages, arising out of or in connection with any dispute with any
Cardholder or third party relating to any Transaction or any breach by Merchant of any of
its obligations under this Agreement. Merchant hereby releases NOVA and Member from
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any and all liabilities, claims, losses, costs, expenses and demands of any kind or nature,
arising out of or in connection with such Transactions and Merchant breaches.
c) Limitation of Liability. Merchant acknowledges that NOVA and Member's fees for the
services provided to Merchant are very small in relation to the funds advanced to
Merchant for Transactions and consequently NOVA's and Member's willingness to
provide these services is based on the liability limitations contained in the Agreement.
Therefore, in addition to greater limitations on NOVA's or Member's liability that may be
provided elsewhere, any liability of NOVA and Member under the Agreement, whether
to you or any other party, whatever the basis of the liability, will not exceed, in the
aggregate, an amount equal to the fees paid by you during the last three (3) months. In no
event will NOVA, Member, or their agents, officers, directors, or employees be liable for
indirect, exemplary, punitive, special, or consequential damages.
d) Performance. NOVA and Member will perform all services in accordance with the
Agreement. NOVA makes no other warranty, express or implied, regarding the services,
and nothing contained in the Agreement will constitute such a warranty. NOVA and
Member disclaim all implied warranties, including those of merchantability and fitness
for a particular purpose. Neither NOVA nor Member shall be liable for any failure or
delay in its performance of the Agreement if such failure or delay arises for reasons
beyond the control of NOVA or Member and without the fault or negligence of NOVA or
Member.
e) General Indemnification.
i) NOVA shall, in addition to any other obligation to indemnify Merchant and to the
fullest extent permitted by law, protect, defend, indemnify and hold harmless,
Merchant, its agents, elected officials and employees from and against all claims,
actions, liabilities, losses (including economic losses, except for any losses excluded
in Section B(8)(c) above), and costs arising out of any actual or alleged: (1) bodily
injury, sickness, disease or death, or injury to or destruction of tangible property
including the loss of use resulting, or claimed to have resulted in whole or in party
from any acts of gross negligence or willful misconduct of NOVA, any of NOVA's
subcontractors, anyone directly or indirectly employed by them, or anyone for whose
acts any of them may be liable in the performance of this Agreement; or (2) violation
of law, statute, ordinance, governmental administration order, rule, regulation, or
infringement of patent rights by NOVA in the performance of this Agreement; or (3)
liens, claims or actions made by NOVA or any of NOVA's subcontractors under
workers compensation acts, disability benefit acts, other employee benefit acts, or
any statutory bar. Any costs or expenses, including reasonable attorney's fees
(including appellate attorney's fees), incurred by Merchant to enforce this Section
shall be borne by NOVA.
ii) Upon completion of all services, obligations and duties provided for in this
Agreement, or in the event of termination of this Agreement for any reason, the terms
and conditions of this Section shall survive indefinitely.
iii) Nothing contained herein is intended or shall it be construed to waive Merchant's
rights and immunities under the common law or Florida Statute § 768.28 as amended
from time to time.
9) REPRESENTATIONS AND WARRANTIES. You represent and warrant to NOVA and
Member as of the time the Agreement is effective, and reaffirm to NOVA and Member each
time a Transaction is effected during the initial term or any renewal term of the Agreement,
the following:
a) Information. All information provided in the Merchant Application, in the bid process if
applicable, or any other document submitted to NOVA is true and complete and properly
reflects the business, financial condition and officers of Merchant. NOVA has the right to
rely upon written instructions submitted by you to request changes to your business
information. You may request written confirmation of NOVA's consent to the changes
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to your business information. You will not submit Transactions for processing to NOVA
or Member for any businesses, products, or methods of selling other than those set forth
in the Merchant Application at the time Merchant applies for services without the prior
written consent of NOVA.
b) Authority to Execute. Merchant and the persons signing the Agreement have the power
to execute and perform the Agreement. Merchant represents and warrants that the person
executing the Agreement is duly authorized to bind Merchant and each affiliated entity
identified in Schedule B to all provisions of the Agreement as if each affiliated entity had
executed the Agreement, and that such person is authorized to execute any document and
to take any action on behalf of Merchant which may be required by NOVA, now or in the
future. Further, you represent and warrant that signing and/or performing in accordance
with the Agreement will not violate any Law, or conflict with any other agreement to
which you are subject.
c) No Litigation. There is no action, suit, or proceeding pending, or to your knowledge,
threatened which if decided adversely would impair your ability to carry on your business
substantially as now conducted or which would adversely affect your financial condition
or operations. You have never been placed on the MasterCard MATCH TM system
(formerly known as the Combined Terminated Merchant File), or, if you have, you have
disclosed that fact to NOVA in writing.
d) Transactions. All Transactions are bona fide. No Transaction involves the use of a
Payment Device for any purpose other than the purchase of goods or services from you or
a return or adjustment related to such purchase. No Transaction involves a Cardholder
obtaining cash from you unless allowed by the Payment Network Regulations and agreed
to in writing with NOVA.
e) Compliance with Laws and Regulations. You will comply with all Laws and Payment
Network Regulations.
f) Business Use. You are obtaining and using the processing services from NOVA for
business purposes only and to facilitate lawful business Transactions between yourself
and your customers. You also acknowledge that the DDA into which debits and credits
are made is being used for lawful business purposes only.
10) AUDIT AND INFORMATION.
a) Audit. You authorize NOVA and Member to perform an audit of your business, at
NOVA's or Member's expense, to confirm compliance with the Agreement. You will
obtain and submit a copy of an audit from a third party acceptable to NOVA of the
financial, physical security, information security, and operational facets of your business
at your expense when requested by the Payment Networks or required by the Payment
Network Regulations. Further, you acknowledge and agree that the Payment Networks
have the right to audit your business to confirm compliance with the Payment Network
Regulations.
b) Information.
i) Authority. You authorize NOVA and Member to make, from time to time, any
business or other inquiries they consider necessary to review the Merchant
Application or continue to provide services under the Agreement. You also authorize
any person or credit reporting agency to compile information to answer those credit
inquiries and to furnish that information to NOVA.
ii) Financial Information. Upon the request of either NOVA or Member, you will
provide NOVA and Member audited financial statements prepared by an independent
certified public accountant selected by you. You further agree to provide to NOVA
and Member such other information regarding your financial condition as NOVA
and/or Member may request from time to time. Within 120 days after the end of each
fiscal year, you will furnish NOVA, as requested, a financial statement of profit and
loss for the fiscal year and a balance sheet as of the end of the fiscal year.
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c) Customer Identification. To help the government fight the funding of terrorism and
money laundering activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person who opens an account.
Accordingly, you must provide certain information and identifying documents to allow
NOVA and Member to identify you.
11) RESPONSIBILITY FOR ACTIONS. You are responsible for the actions of or failure to act
by your officers, directors, employees, agents, business invitees, and those of any other
Person who, with or without your consent or cooperation, obtains access to information
related to Transactions.
12) FRAUD MONITORING. You are solely responsible for monitoring your Transactions and
the actions of your officers, directors, employees, agents, business invitees, third party
vendors including Value Added Services, and those of any other Person who, with or without
your consent or cooperation, obtains access to your Transactions, for fraudulent or other
suspicious activity. NOVA and Member are under no duty to monitor Merchant's
transactions for fraudulent or other suspicious activity.
13) BUSINESS CONTINUITY. Merchant is solely responsible for developing and maintaining
a disaster recovery plan. Merchant should test the operation of such plan, or parts thereof, on
a periodic basis to ensure its effectiveness in providing disaster recovery capability to
Merchant. Merchant will maintain sufficient "backup" information and data (e.g.,
Transaction Receipts or detailed reporting) with respect to Transactions in order to
reconstruct any information or data loss due to any system malfunction. NOVA is under no
duty to recreate lost Transactions.
14) THIRD PARTIES.
a) Products or Services. You may desire to employ Value Added Services to assist you.
You shall not utilize any Value Added Services, unless you have disclosed such use to
NOVA previously in writing, and unless such Value Added Services are fully compliant
with all applicable Laws and Payment Network Regulations. You must ensure that any
Value Added Service used by you is registered with the Payment Networks prior to the
performance of any contracted services on your behalf. Further, you will be bound by the
acts and omissions of the third party offering such Value Added Services and you will be
responsible for ensuring compliance by the third party offering such Value Added
Services with all applicable Laws and Payment Network Regulations. You will hold
NOVA and Member harmless from and against any loss, cost, or expense incurred in
connection with or by reason of your use of any Value Added Service. Neither NOVA
nor Member is responsible for the Value Added Services provided by an unaffiliated
third party and neither NOVA nor Member is responsible for any Transaction until
NOVA receives data for the Transaction in the format required by NOVA.
b) Use of POS Devices Provided by Others. In addition to the foregoing, if you use Value
Added Services for the purposes of data capture and/or authorization, you agree: (i) that
the third party providing such services will be your agent in the delivery of Transactions
to NOVA and Member via a data processing system or network compatible with
NOVA's; and (ii) to assume full responsibility and liability for any failure of that third
party to comply with applicable Laws and the Payment Network Regulations or the
Agreement. Neither Member nor NOVA will be responsible for any losses or additional
fees incurred by you as a result of any error by a third party agent or by a malfunction in
a third party POS Device. Neither NOVA nor Member is responsible for any Transaction
until NOVA receives data for the Transaction in the format required by NOVA.
15) TERM AND TERMINATION.
a) Term. Unless terminated as set forth below, the Agreement will remain in effect for a
period of three (3) years ("Initial Term") following the Effective Date. Thereafter, the
Agreement will renew for successive two (2) year terms ("Renewal Term") unless
terminated as set forth below.
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b) Termination.
i) Merchant.
(1) The Agreement may be terminated by you effective at the end of the Initial Term
or any Renewal Term by providing written notice of an intent not to renew to
NOVA at least one hundred twenty (120) days prior to the expiration of the then
current term.
(2) The Agreement may be terminated by you in the event of a material breach of the
terms of the Agreement by Member or NOVA, provided you give Member and
NOVA written notice of any alleged breach and such breach remains uncured for
a period of sixty (60) days following receipt of written notice by the party you
claim to be in breach of the Agreement.
(3) The Agreement may be terminated by you in the event that sufficient legislative
appropriation is not available, provided that you give NOVA and Member sixty
(60) days notice prior to termination.
ii) NOVA or Member.
(1) The Agreement may be terminated by Member or NOVA effective at the end of
the Initial Term or any Renewal Term by providing written notice of an intent not
to renew to you at least one hundred twenty (120) days prior to the expiration of
the then current term.
(2) The Agreement may be terminated by NOVA or Member immediately upon the
occurrence of one or more of the following:
(a) The occurrence of an adverse change in your financial condition.
(b) The garnishment or attachment of your deposit accounts with Member, the
DDA, the Reserve Account, or any of your property in the possession of
NOVA or Member.
(c) The assignment of your assets generally for the benefit of creditors.
(d) The commencement of a Bankruptcy Proceeding by or against you.
(e) Any representation and warranty by a party is or becomes false or misleading
in any material respect as of the date made, or becomes false or misleading at
any time during the term of this Agreement.
(f) Any Payment Network requires Member or NOVA to terminate this
Agreement or cease processing transactions for you.
(3) The Agreement may be terminated by NOVA or Member if, after providing
thirty (30) days written notice, any of the following conditions remain:
(a) The occurrence of Excessive Activity (defined in Section C(24)(c)).
(b) The acceptance of Card Not Present Transactions without proper disclosure to
NOVA and Member as set forth herein.
(c) The failure to pay NOVA or Member any amount you owe NOVA or
Member.
(d) The failure by you to perform a material obligation of this Agreement.
NOVA's and Member's rights of termination under the Agreement are cumulative. A
specific right of termination in this section shall not limit any other right of NOVA or
Member to terminate the Agreement expressed elsewhere.
c) Notice of Termination. Notice of termination by Merchant, NOVA, or Member must be
given in writing. Termination shall be effective on the date specified by the written
notice; provided, however Merchant agrees that closing Merchant's account with NOVA
may take up to thirty (30) days following NOVA's receipt of written notice of
termination. In those limited instances where Merchant's account is reinstated by
NOVA following termination by either Merchant or NOVA, all of Merchant's
obligations under the Agreement are likewise reinstated and will renew for successive
Renewal Terms effective on the date of reinstatement.
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d) Action Upon Termination.
i) Accounts. All your obligations regarding Transactions processed prior to termination
will survive termination. Funds related to Transactions processed prior to termination
may be placed in a Reserve Account until you pay all amounts you owe NOVA or
Member or amounts for which you are liable under the Agreement. You must
maintain enough funds in the DDA following termination to cover all Chargebacks,
returns, adjustments, fees, fines, penalties, and other amounts due under the
Agreement for a reasonable time, but in any event, not less than 180 days from
termination. If a Reserve Account is established by NOVA, then any balance
remaining after Chargeback rights have expired and all other amounts owed by you
have been paid will be disbursed to you.
ii) Equipment. If your equipment is leased, you are obligated to honor the terms and
conditions of your leasing contract. If your equipment is owned by NOVA, you must
return all equipment owned by NOVA within ten (10) business days and immediately
pay NOVA any amounts you owe for such equipment.
iii) Return to NOVA. All promotional materials, advertising displays, emblems,
Transaction Receipts, Credit Transaction Receipts, and other forms supplied to you
and not purchased by you or consumed in use will remain the property of NOVA and
must be returned to NOVA or destroyed within ten (10) business days after
termination of the Agreement. You will be fully liable for any and all loss, cost, and
expense suffered or incurred by NOVA arising out of any failure to return or destroy
such materials following termination.
16) COMPLIANCE WITH LAWS AND PAYMENT NETWORK REGULATIONS;
MATCHTM.
a) Compliance with Laws and Payment Network Regulations. You agree to comply with
the Payment Network Regulations, including all requirements applicable to obtaining
authorization for ACH debits from a consumer account, and with any policies and
procedures provided by Member or NOVA. The Payment Network Regulations are
incorporated into the Agreement by reference as if they were fully set forth in the
Agreement. You further agree to comply with all Laws, including without limitation,
Laws related to: (i) Payment Devices; and (ii) electronic fund transfers; and (iii)
confidential treatment of information. You will assist Member and NOVA in complying
in a complete and timely manner with all Laws and Payment Network Regulations now
or hereafter applicable to any Transaction or the Agreement. You will execute and deliver
to Member and NOVA all documents they may from time to time reasonably deem
necessary to verify your compliance with this provision.
b) MATCHTM. You acknowledge that Member and/or NOVA is required to report
Merchant's business name and, if applicable, the name of Merchant's principals to the
MATCH TM listing maintained by MasterCard and accessed by Visa pursuant to the
requirements of the Payment Network Regulations. You specifically consent to the
fulfillment of the obligations related to the listing by NOVA and Member, the listing
itself and you waive and hold harmless NOVA and Member from all claims and
liabilities you may have as a result of such reporting.
c) Security Program Compliance. You must comply with the requirements of the Payment
Card Industry (PCI) Data Security Standard including the Cardholder Information
Security Program (CISP) of Visa and the Site Data Protection Program (SDP) of
MasterCard, as applicable, and any modifications to, or replacements of such programs
that may occur from time to time. You also shall ensure that all third parties from whom
you procure Value Added Services or third party POS Devices comply with the
requirements of those programs. Upon request, NOVA will provide you with the
respective website links to obtain the current requirements of the Visa and MasterCard
programs. You are responsible for your own actions or inactions, those of your officers,
directors, shareholders, employees and agents, including any third party vendors with
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whom you contract to perform services for you. You shall hold NOVA and Member
harmless from any liability, loss, cost, or expense resulting from the violation of any of
the program requirements by any of the individuals or entities listed in the immediately
preceding sentence. Should you participate in a program with any other Payment
Network or Issuer, or accept a Payment Device of any other Payment Network that has a
security program in place, you must comply therewith and ensure that your officers,
directors, shareholders, employees, and agents, including any third party vendors from
whom you procure Value Added Services or third party POS Devices also comply with
the program requirements of such Payment Network.
d) Data Compromise. You must notify us immediately (and if notice is given orally, it
must be confirmed in writing within two (2) business days), if you know or suspect that
Cardholder information has been accessed or used without authorization. You must take
immediate steps to preserve all business records, logs and electronic evidence and contact
local law enforcement authorities including the local FBI and U.S. Secret Service. You
must work with us to rectify any issues that may result, including providing us with (and
obtaining any waivers necessary for) all relevant information to verify your ability to
prevent future data incidents in a manner consistent with this Agreement. Without
waiving any of our rights and remedies, you are liable for all fraudulent transactions
related to such data incident and all costs NOVA or Member incur as a result of such
incident, including claims from third parties and all costs related to the notification of
Cardholders and cancellation and re -issuance of Cards, forensic investigation, and PCI
review for a report of compliance. You must provide to us, on request, audit reports of
your computer systems or data incidents or allow us to perform such audits, at your
expense. Audits must identify the cause of the data incident and confirm whether or not
you were in compliance with the Payment Networks' PCI Data Security Standard at the
time of the incident.
17) USE OF TRADEMARKS; CONFIDENTIALITY; PASSWORDS.
a) Use of Trademarks. You will prominently display the promotional materials provided
by NOVA in your place of business. Your use of Visa and MasterCard marks, as well as
marks of other Payment Networks, will fully comply with the Payment Network
Regulations. Your right to use all such marks will terminate upon termination of the
Agreement. Your use of promotional materials, provided by Visa, MasterCard, and/or
other Payment Networks will not indicate, directly or indirectly, that Visa, MasterCard,
or such other Payment Networks endorse any goods or services other than their own and
you may not refer to Visa, MasterCard, or any other Payment Networks in stating
eligibility for your products or services.
b) Confidentiality.
i) Cardholder and Transaction Information. You shall, at all times protect the
confidentiality of Cardholder and Transaction information in accordance with all
applicable Laws and Payment Network Regulations. You will not disclose
Cardholder or Transaction information to any third party, except to an agent of yours
assisting in completing a Transaction, or as required by Laws or the Payment
Network Regulations. You must maintain all systems and media containing
Cardholder and Transaction information in a secure manner to prevent access by or
disclosure to anyone other than your authorized personnel. You must maintain
Cardholder and Transaction information for such time periods as may be required by
Laws and the Payment Network Regulations and thereafter destroy, in a manner that
will render the data unreadable, all such media that you no longer deem necessary or
appropriate to maintain. Further, you must take all steps reasonably necessary to
ensure that Cardholder and Transaction information is not disclosed or otherwise
misused. You may not retain or store magnetic stripe or CVV2/CVC2 data after
authorization for record keeping or additional authorization processing. In
accordance with Section B(16)(d), Merchant shall immediately notify NOVA of any
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Cardholder or Transaction information compromise of which it becomes aware
whether such compromise occurred at: (i) the Merchant; (ii) a third party from whom
Merchant procures Value Added Services; (iii) NOVA or Member; or (iv) elsewhere.
ii) Bankruptcy. In the event of failure or other suspension of your business operations,
including bankruptcy or insolvency, you must not sell, transfer, or disclose any
materials that contain Cardholder or Transaction information to third parties. You
must:
(1) Return this information to NOVA, or
(2) Provide acceptable proof of destruction of this information to NOVA.
iii) NOVA or Member Confidential Information. You shall at all times protect
NOVA's and Member's Confidential Information. You will not disclose any of
NOVA's or Member's Confidential Information to any third party except as required
by Laws.
c) Passwords. If you receive a password from NOVA to access any of NOVA's databases
or services you will: (i) keep the password confidential; (ii) not allow any other entity or
person to use the password or gain access to NOVA's databases or services; (iii) be liable
for all action taken by any user of the password; and (iv) promptly notify NOVA if you
believe NOVA's databases or services or your information has been compromised by use
of the password. If you receive passwords from a third party, you must protect such
passwords in the manner required by such third party and hold NOVA and Member
harmless from any losses, costs, or expenses that arise from your use or misuse of such
third party passwords.
d) Proprietary Interest. Merchant has no interest whatsoever, including, without
limitation, copyright interests, franchise interests, license interests, patent rights, property
rights, or other interest in any services, software, or hardware provided by NOVA.
Nothing in the TOS shall be construed as granting Merchant any patent rights or patent
license in any patent which NOVA may obtain in respect to NOVA's services, software,
or equipment. Merchant will make no attempt to duplicate or otherwise ascertain the
components, circuit diagrams, logic diagrams, flow charts, source and object code,
schematics or operation of, or otherwise attempt to reverse engineer any of NOVA's
services, equipment, or software.
18) MISCELLANEOUS PROVISIONS.
a) Entire Agreement. The Agreement, Payment Network Regulations, and any amendment
or supplement to either, constitutes the entire agreement between the parties, and all prior
or other representations, written or oral, are merged in and superseded by the Agreement.
In the event of a conflict between the documents comprising the Agreement, the
following order of priority will apply: (i) any Addendum; (ii) the TOS; (iii) the Payment
Network Regulations; (iv) the Merchant Application; (v) the Merchant Operating Guide;
and (vi) any other guides or manuals provided to Merchant from time to time.
b) Construction. Any alteration or strikeover in the text of this preprinted TOS will have no
binding effect and will not be deemed to amend the Agreement. The headings used in the
TOS are inserted for convenience only and will not affect the interpretation of any
provision. The language used will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied against any
party.
c) Assignability. The Agreement may be assigned by Member or NOVA, but may not be
assigned by Merchant, directly or by operation of law, without the prior written consent
of NOVA. If you, nevertheless, assign the Agreement without NOVA's consent, the
Agreement will be binding on the assignee as well as you.
d) Notices. Any written notice to the Merchant under the Agreement will be deemed
received upon the earlier o£ (i) actual receipt; or (ii) five (5) business days after being
deposited in the United States mail, or with a nationally recognized overnight carrier, and
addressed to the last address shown on the records of NOVA. Any written notice to
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NOVA, shall be sent by U.S. mail or a nationally recognized overnight carrier to: 7300
Chapman Highway, Knoxville, TN 37920, and shall be deemed received only upon
actual receipt.
e) Bankruptcy. You will immediately notify NOVA of any Bankruptcy Proceeding,
receivership, insolvency, or similar action or proceeding initiated by or against Merchant.
You will include NOVA on the list and matrix of creditors as filed with the Bankruptcy
Court, whether or not a claim may exist at the time of fling. Failure to do so will be
cause for immediate termination of the Agreement and shall allow the pursuit of any
other action available to NOVA under applicable Payment Network Regulations or Laws.
You acknowledge that the Agreement constitutes an executory contract to make a loan, or
extend other debt financing or financial accommodations to, or for the benefit of you,
and, as such, cannot be assumed or assigned in the event of your bankruptcy.
f) Attorneys' Fees. The non -prevailing party will be liable for and will reimburse the other
parties for all attorneys' fees and other costs and expenses paid or incurred in the
enforcement of this Agreement, or in collecting any amounts due or resulting from any
breach of the Agreement.
g) Customer Contact. You authorize Member and NOVA to contact your customers or
their Issuer if Member or NOVA determines that such contact is necessary to obtain
information about any Transaction between you and a customer.
h) Telephone Recording. You authorize NOVA to monitor and record telephone
conversations at any time without further notice to the parties to such conversations. The
decision to record any conversation shall be solely in NOVA's discretion.
i) Information Sharing. You understand and agree that NOVA may disclose any
information gathered by NOVA to (i) NOVA's "affiliates" (i.e., companies related to us
by common control or ownership) that offer financial products or services, including
those identified in the Agreement and to NOVA's administrative or service units that
perform such functions; (ii) to non-affiliated companies to assist NOVA in providing the
products and services Merchant has requested; (iii) to credit rating agencies; and (iv) as
required by the Payment Network Regulations or the Laws (e.g., for tax reporting
purposes or in response to a subpoena).
j) Communication with Merchant. You agree that NOVA and Member may provide you
with information about the Program including, without limitation, information about new
products and/or services by telephone, electronic mail, and/or facsimile.
k) Amendments. Member and NOVA may propose amendments or additions to the
Agreement. Member or NOVA will inform you of a proposed change in a periodic
statement or other notice. You will be deemed to have agreed to the change if you
continue to present Transactions to Member and NOVA after thirty (30) days following
the issuance of the notice. NOVA is entitled to pass through to you any fee increases
imposed upon NOVA by Visa, MasterCard, any other Payment Network, and any other
third party including telecommunications vendors.
1) Severability and Waiver. If any provision of the Agreement is found to be illegal or
otherwise unenforceable, the invalidity or unenforceability of that provision will not
affect any of the remaining provisions and the Agreement will be construed as if the
illegal or unenforceable provision is not contained in the Agreement. Neither the failure,
the delay by NOVA or Member to exercise, nor the partial exercise of any right under the
Agreement will operate as a waiver or estoppel of such right, nor shall such amend the
Agreement. All waivers requested by you must be signed by NOVA.
m) Independent Contractors. NOVA, Member, and you will be deemed independent
contractors and no one will be considered an agent, joint venturer, or partner of the other,
unless and to the extent otherwise specifically provided herein. This Agreement has been
entered into solely for the benefit of the parties hereto and is not intended to create an
interest in any third party.
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n) Privacy Laws. In addition to Section (B)(17)(b) above, Merchant must take all
commercially reasonable steps to protect the confidentiality of Cardholder and
Transaction information and shall establish and maintain physical, technical and
administrative safeguards to prevent unauthorized access by third parties to such
Cardholder and Transaction information, using a standard of care at least equal to the
standard required of NOVA to protect such information pursuant to applicable Laws,
including without limitation the federal Health Insurance Portability and Accountability
Act (HIPAA), the federal Gramm -Leach -Bliley Act or other applicable privacy laws.
Further, a Merchant that is a "covered entity" or "business associate", as defined under
HIPAA, must not use any product to store, transmit, or otherwise maintain "protected
health information" as defined by HIPAA. NOVA is not a "business associate" as defined
by HIPAA and it is not NOVA's practice to store or accept any information that would
cause it to be a "business associate" under HIPAA.
o) Survival. All or your obligations to NOVA and Member shall survive termination of the
Agreement, including, without limitation, Sections (13)(4), (13)(5), (13)(6), (13)(7), (13)(8),
(B)(11), (13)(14), (B)(15)(d), (13)(16), (13)(17) and (13)(18)(f) of the TOS.
p) Counterparts; Facsimile Signatures; Delivery. The Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which, taken
together, shall constitute one and the same agreement. Delivery of the various documents
and instruments comprising the Agreement may be accomplished by a facsimile
transmission, and such a signed facsimile or copy shall constitute a signed original.
q) Governing Law and Venue. The Agreement will be governed by and construed in
accordance with the Laws of the State of Florida. Venue for all disputes arising out of
the Agreement shall be in Broward County, Florida.
r) Insurance Requirements. NOVA's liability insurance policies shall include Merchant
as an "additional insured."
Section C — Acceptance of Visa and MasterCard
19) ACCEPTANCE OF VISA AND MASTERCARD. Merchant agrees to the following
provisions in addition to the Definitions in Section (A) and the General Provisions of Section
(B) above:
20) VISA AND MASTERCARD DEFINITIONS. For purposes of this Section, "Credit Card"
shall be deemed to be limited to a: (i) credit/business product of Visa; (ii) consumer
debit/prepaid product of Visa; (iii) credit/business product of MasterCard; or (iv) consumer
debit/prepaid product of MasterCard as applicable. The credit/business products of Visa are
those products for which transactions by the Cardholder are paid by the Cardholder at least
fifteen (15) days after the transaction including: (i) consumer credit products (including co -
branded and smart Visa versions) such as Classic, Gold, Platinum, Signature, and Infinite
cards; and (ii) business products such as business credit, business debit, business line of
credit, and smart Visa business, purchasing cards, corporate cards, fleet cards, and
commercial prepaid cards. The consumer debit/prepaid products of Visa are those products
that for which Transactions by the Cardholder are paid by accessing the Cardholder's asset
account immediately including: (i) consumer Visa check cards such as Classic, Gold,
Platinum and Visa Check Card II; and (ii) consumer prepaid/EBT cards such as Visa Buxx,
Visa Payroll, Visa gift cards (including incentives, promotional, and rebate), child support
cards; unemployment cards, insurance claim cards, customer service cards, state
disbursement cards (not including unemployment or child support), flexible spending account
cards, general purpose reloadable and one-time use prepaid cards, and student aid college
cards. The consumer debit/prepaid products of MasterCard include Cardholder signature
debit cards, prepaid cards, stored value cards, EBT cards and payroll cards. The
credit/business products of MasterCard include all other MasterCard products.
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21) HONORING CREDIT CARDS.
a) Honoring Cards. Merchant may choose to accept (i) only the credit/business products of
Visa and/or MasterCard; (ii) only the consumer debit/prepaid products of Visa and/or
MasterCard; or (iii) both the credit/business products and consumer debit/prepaid
products of Visa and/or MasterCard. You must indicate your decision to accept a limited
category of products on the Merchant Application and if you wish to discontinue
acceptance of either category of products, you must provide NOVA with thirty (30) days
advance written notice. If you choose to accept only one of the categories of products but
later submit a Transaction outside of the selected category, NOVA and Member are not
required to reject the Transaction and you will be charged our standard fees and expenses
for that category of products. Further, if you choose a limited acceptance option, you
must still honor all international cards presented for payment. Merchants who have
decided to implement a limited acceptance policy are required to display appropriate
signage to communicate that policy to Cardholders.
b) No Minimum or Maximum. Merchant shall not establish minimum or maximum Credit
Card Transaction amounts.
c) Cardholder Identification. In Card Present Transactions, you will identify the
Cardholder and check the expiration date and signature on each Credit Card. You will not
honor any Credit Card i£ (i) the Credit Card has expired; (ii) the signature on the
Transaction Receipt does not correspond with the signature on the Credit Card, is blank,
or uses language to the effect of "see id"; or (iii) the account number embossed on the
Credit Card does not match the account number on the Credit Card's magnetic stripe.
d) Credit Card Recovery. You will use reasonable, peaceful means to recover any Credit
Card: (i) on Visa Cards, if the printed four digits below the embossed account number do
not match the first four digits of the embossed account number; (ii) if you are advised by
Member (or its designee), the Issuer, or the designated voice authorization center to retain
it; (iii) if you have reasonable grounds to believe the Credit Card is lost, stolen,
counterfeit, fraudulent, or otherwise invalid, or its use is not authorized by the
Cardholder; or (iv) for MasterCard Cards, if the printed four digits below the embossed
account number do not match the first four digits of the embossed account number, or the
Credit Card does not have the "Twin Globes" hologram on the lower right corner of the
Credit Card face.
e) Surcharges. You will not add any amount to the posted price of goods or services you
offer as a condition of paying with a Credit Card, except as permitted by the Credit Card
Rules. This paragraph does not prohibit you from offering a discount to induce a person
to pay by cash, check, or similar means rather than by Credit Card.
f) Convenience Fees. You may not assess Convenience Fees unless you have disclosed
such fees to NOVA previously in writing and you have been approved by NOVA to
assess such fees. If you complete a Transaction and assess a Convenience Fee without
having disclosed such fee previously in writing and obtained NOVA's consent, you will
be in breach of the Agreement and NOVA may immediately terminate the Agreement in
addition to any other remedies available under the Agreement, Laws, and Payment
Network Regulations. Transactions that include a Convenience Fee must comply with
each of the following requirements:
i. A Convenience Fee cannot be assessed in a face-to-face merchant environment.
ii. The Convenience Fee is permitted only for one-time payments and may not be
imposed on recurring payments or transactions. Examples of recurring charges
include, but are not limited to, insurance premiums, subscriptions, Internet
service provider monthly fees, membership fees, tuition or utility charges.
iii. You must provide a true "convenience" in the form of an alternative payment
channel outside of your customary payment channels, and the Convenience Fee
must be disclosed by you to the Cardholder as a charge for the alternative
payment channel convenience that is provided.
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iv. The Convenience Fee must be disclosed prior to the completion of the
Transaction, and the Cardholder must be given the option to cancel the
Transaction if the Cardholder does not want to pay the fee.
v. The Convenience Fee must be included in the total amount of the Transaction; it
cannot be "split" out from the Transaction amount. The only exception is for
card acceptance programs involving only MasterCard Credit Cards where Visa
Credit Cards are not accepted.
vi. If a Convenience Fee is assessed it must be for all payments (Visa, MasterCard,
Discover, AMEX, ACH, and check) within a particular payment channel (mail,
telephone, and internet).
vii. Additional Visa Convenience Fee Requirements are as follows: (i) it must be a
flat fee; (ii) it cannot be tiered or percentage based regardless of the value of the
payment due; (iii) it must not be authorized and settled separately from the
primary transaction; (iv) the fee must be assessed by the same Merchant actually
providing the goods and services; and (v) the fee may not be assessed by a
different merchant.
viii. Additional MasterCard Convenience Fee Requirements are as follows: (i) the fee
may be tiered, percentage based, or flat; and (ii) the fee may be authorized and
settled separately from the primary transaction.
ix. Merchants who accept both Visa and MasterCard Credit Cards are restricted to
assessing Convenience Fees equally across card types and as such the Merchant
is restricted to a flat Convenience Fee and must combine all charges into one
authorization and clearing Transaction.
x. To the extent Merchant's state or other governing body has passed legislation
that requires Convenience Fee assessment by government agencies as a
component of card acceptance, such laws may conflict with the Payment
Network Regulations. Merchant bears all responsibility for, and agrees to hold
NOVA and Member harmless from, all liability associated therewith, including
all fees, fines and penalties levied by the Payment Networks.
xi. Convenience Fees may be prohibited by Laws in some States. Merchant may not
charge Convenience Fees where prohibited by Laws.
xii. In no event is a Convenience Fee to be referred to as a surcharge or advertised as
an offset to processing fees.
xiii. If you have received approval from Visa to participate in the Tax Payment Pilot
Program, then you may assess a variable service fee so long as: (i) only eligible
tax payments are accepted (personal income, personal property, real property,
unemployment, business income and sales and use taxes); (ii) Cardholders are
notified of the fee and given the opportunity to opt -out of the Transaction; (iii)
the variable fee must be processed as a separate Transaction and not combined
with the tax payment; (iv) the variable fee may be assessed on all payment
channels and the fee cannot be higher than any other card -based payment offered
through the same channel; and (v) you submit appropriate reports of CISP
compliance to Visa and receive Visa approval and certification annually.
g) Return Policy. You must properly disclose to the Cardholder, at the time of the sales
Transaction and in accordance with the Credit Card Rules, any limitation you have on
accepting returned merchandise.
h) No Claim Against Cardholder. You will not have any claim against, or right to receive
payment from, a Cardholder or any other customer in any Transaction unless Member or
NOVA refuses to accept the Transaction Receipt or revokes its prior acceptance of the
Transaction Receipt (after receipt of a Chargeback or otherwise). You will not accept any
payments from a Cardholder relating to previous charges for merchandise or services
included in a Transaction Receipt, and if you receive such payments, you will promptly
remit them to NOVA.
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i) Disputes With Cardholders. All disputes between you and any Cardholder relating to
any Transaction will be settled between you and the Cardholder. Neither NOVA nor
Member bears any responsibility for such Transactions or disputes, other than with
respect to processing Chargebacks under the Credit Card Rules.
22) AUTHORIZATION.
a) Required on all Transactions. You must obtain an Authorization Code before
completing any sales Transaction. An Authorization Code verifies the Credit Card
number is valid, the Credit Card has not been reported lost or stolen at the time of the
sales Transaction, and confirms the amount of credit or funds requested for the sales
Transaction is available. You will follow any instructions received during Authorization.
Upon receipt of an Authorization Code, you may consummate only the sales Transaction
authorized and must note the Authorization Code on the Transaction Receipt. In any case
in which a sales Transaction is completed without imprinting the Credit Card, the
Merchant, whether or not an Authorization Code is obtained, shall be deemed to warrant
the true identity of the customer as the Cardholder. For all Card Not Present sales
Transactions, you must obtain the Credit Card expiration date, Cardholder address and
telephone number, and CVV2/CVC2 number and forward them as part of the
Authorization.
b) Effect. An Authorization Code does not: (i) guarantee the Merchant final payment for a
sales Transaction; (ii) guarantee that the sales Transaction will not be disputed later by
the Cardholder as any sales Transaction is subject to Chargeback; or (iii) protect you in
the event of a Chargeback regarding unauthorized sales Transactions or disputes
involving the quality of goods or services. Authorization Codes will not waive any
provision of the TOS or otherwise validate a fraudulent sales Transaction or a sales
Transaction involving the use of an expired Credit Card.
c) Unreadable Magnetic Stripes. For Card Present Transactions, if you authorize and
present Transactions electronically and your terminal is unable to read the magnetic stripe
on the Credit Card, you must obtain the following in addition to key -entering the
Transaction into the POS Device for processing: (i) a physical imprint of the Credit Card
using a manual imprinter and (ii) the Cardholder's signature on the imprinted Transaction
Receipt.
23) PRESENTMENT OF TRANSACTION RECEIPTS.
a) Transaction Receipts.
i) Card Present and Card Not Present Transactions (other than Electronic
Commerce Transactions). You will use a Transaction Receipt to document each
Card Present and Card Not Present Transaction. Each such Transaction Receipt must
include:
(1) Card account number (truncated account number required on the Cardholder's
copy) including the specific payment brand (i.e. Visa or MasterCard).
(2) Merchant name and location.
(3) Location Code (i.e., merchant identification number issued by NOVA).
(4) Transaction amount, including applicable taxes.
(5) Transaction date.
(6) Space for Cardholder signature for Card Present Transactions.
(7) Indication of who shall receive each copy of the Transaction Receipt (e.g.,
Merchant Copy, Bank Copy, Cardholder Copy).
(8) Authorization Code.
(9) Terms and conditions of the sale, if restricted.
If the Merchant is accepting consumer debit products of Visa or MasterCard, no data
referencing the Cardholder's PIN number shall be printed on the receipt.
ii) Electronic Commerce Transactions. You will use a Transaction Receipt to
document each Electronic Commerce Transaction. Each such Transaction Receipt
must include:
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(1) Card account number (truncated account number required on the Cardholder's
copy) including the specific payment brand (i.e. Visa or MasterCard).
(2) Merchant name.
(3) Merchant online address.
(4) Purchaser name.
(5) Authorization Code.
(6) Transaction amount.
(7) Transaction date.
(8) Customer service contact, including telephone number.
(9) Terms and conditions of the sale, if restricted.
b) Signatures. In Card Present Transactions, Transaction Receipts must be signed by the
Cardholder. The requirement for the Cardholder's signature on the Transaction Receipt
will only be waived if the Credit Card Transaction is a valid Card Not Present
Transaction which fully complies with the requirements set forth in the TOS.
c) Reproduction of Information. For Card Present Transactions, if the following
information embossed on the Credit Card is not legibly imprinted on the Transaction
Receipt, you will legibly reproduce on the Transaction Receipt the: (i) Cardholder's
name; (ii) account number; (iii) expiration date; and (iv) Merchant's name and place of
business. Additionally, for MasterCard Transactions, on the Transaction Receipt you will
legibly reproduce the name of the bank that issued the Credit Card as it appears on the
face of the Credit Card.
d) Truncation.
i) The Credit Card account number must be truncated on all Cardholder -activated
Transaction Receipts. Truncated digits should be replaced with a fill character such
as "x," "*," or "#," and not with blank spaces or numeric characters.
ii) Effective July 1, 2003, all new POS Devices must suppress all but the last four digits
of the Credit Card account number and the entire expiration date on the Cardholder's
copy of the Transaction Receipt generated from electronic (including Cardholder -
activated) POS Devices. Effective July 1, 2006, all existing POS Devices must
comply with the rule set forth in this subsection.
iii) These truncation rules do not apply to Transactions in which the only way to record a
Credit Card account number is in handwriting or by making an imprint or copy of the
Credit Card. '
e) Delivery and Retention of Transaction Receipts. For Card Present Transactions, you
will deliver a complete and legible copy of the Transaction Receipt or Credit Transaction
Receipt to the Cardholder at the time of the Transaction. For Card Not Present
Transactions, you will deliver a complete and legible copy of the Transaction Receipt or
Credit Transaction Receipt to the Cardholder promptly following completion of the
Transaction in either electronic (e.g., e-mail or fax) or paper (e.g., handwritten or
terminal -generated) format. You will retain the "Merchant Copy" of the Transaction
Receipt or Credit Transaction Receipt for at least eighteen (18) months following the date
of completion of the Credit Card Transaction (or such longer period as the Credit Card
Rules or the Laws may require).
f) Electronic Transmission. If you utilize electronic Authorization and/or data capture
services, you will enter the data related to Transactions into a POS Device and settle the
Transactions and transmit the data to NOVA or its designated agent in the form specified
by NOVA no later than the close of business on the date the Transactions are completed.
If Member or NOVA requests a copy of a Transaction Receipt, Credit Transaction
Receipt, or other Transaction evidence, you must provide it within the time frame
specified in the request.
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24) RETRIEVAL REQUESTS AND CHARGEBACKS; CREDITS; REPROCESSING;
FRAUD; AND FACTORING.
a) Retrieval Requests. You must respond to a Retrieval Request with a legible copy of the
Transaction Receipt within the time frame specified. If you fail to provide a legible copy
of the Transaction Receipt, you will receive a Chargeback that cannot be cured.
b) Chargebacks. You are fully liable to NOVA and Member for all Transactions returned
to NOVA or Member for whatever reason including, but not limited to, Chargebacks.
You agree to accept for Chargeback and will be liable to Member and NOVA in the
amount of any sale for which the Cardholder or Issuer disputes the validity of the sale for
any reason. You will pay NOVA and Member on demand the value of all Chargebacks.
You authorize NOVA and Member to offset from incoming Transactions and to debit the
DDA and the Reserve Account for the amount of all Chargebacks. You will fully
cooperate with NOVA and Member in complying with the Credit Card Rules regarding
Chargebacks. The following is not to be considered a complete listing of the reasons for
which you may incur a Chargeback. It is intended only to provide the most commonly
encountered situations where a Chargeback may occur.
i) Failure to respond to a Retrieval Request or failure to provide a legible, complete, or
proper copy of a Transaction Receipt in response to a Retrieval Request,
ii) Unauthorized use of a Credit Card as alleged by the Cardholder,
iii) Dispute by the Cardholder over the quality of goods or services,
iv) Failure by Merchant to provide goods or services,
v) The Transaction Receipt does not bear the Cardholder's signature,
vi) The Transaction Receipt represents a sales Transaction for which Authorization was
initially declined and was subsequently obtained by means of multiple Authorization
attempts or other means not permitted hereunder,
vii) The Transaction Receipt fails to comply with the terms and conditions of the
Agreement or fails to comply with the Credit Card Rules,
viii) The sales Transaction was completed under circumstances constituting a breach
of the Agreement.
c) Excessive Activity. Your presentation to NOVA of Excessive Activity will be a breach
of the Agreement and cause for termination of the Agreement as set forth in Section
B(15)(b)(ii)(3). "Excessive Activity" means, during any monthly period, and for any one
of Merchant's terminal identification numbers or merchant identification numbers,
Chargebacks and/or Retrieval Requests in excess of one percent (1%) of the gross dollar
amount of your sales Transactions or returns in excess of two and one-half percent
(2.5%) of the gross dollar amount of sales Transactions. You authorize, upon the
occurrence of Excessive Activity, Member and NOVA to take additional actions as either
of them may deem necessary including, without limitation, suspension of processing
privileges or creation or maintenance of a Reserve Account in accordance with the TOS.
d) Credits.
i) Credit Transaction Receipt. You will issue a Credit Transaction Receipt, instead of
issuing cash or a check, as a refund for any previous sales Transaction. Member will
debit the DDA for the total face amount of each Credit Transaction Receipt submitted
to NOVA. You will not submit a Credit Transaction Receipt relating to any
Transaction Receipt not originally submitted to NOVA, nor will you submit a Credit
Transaction Receipt that exceeds the amount of the original Transaction Receipt. You
will, within the time period specified by applicable Laws or the Credit Card Rules,
whichever time period is shorter, provide NOVA with a Credit Transaction Receipt
for every return of goods or forgiveness of debt for services that was the subject of a
previous sales Transaction in accordance with the Credit Card Rules.
ii) Revocation of Credit. Member or NOVA may, in their sole discretion, refuse to
accept any Credit Transaction Receipt for processing.
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iii) Reprocessing. You will not resubmit or reprocess any Transaction that has been
charged back.
e) Fraud and Factoring. You will not present for processing or credit, directly or
indirectly, any transaction not originated as a result of a transaction directly between you
and a Cardholder or any Transaction you know or should know to be fraudulent or not
authorized by the Cardholder. Perpetrators of fraudulent Transactions will be referred to
law enforcement officials. You will not deposit any Transaction Receipt representing the
refinancing of an existing obligation of a Cardholder. You agree that NOVA may, within
its sole discretion, suspend the disbursement of funds from Transaction Receipt for any
reasonable period of time required to investigate suspicious or unusual deposit activity.
NOVA and Member will have no liability for any losses you may attribute to any
suspension of funds disbursement.
25) OTHER TYPES OF TRANSACTIONS.
a) Mail Order/Telephone Order (MO/TO). You may not solicit or accept MO/TO sales
Transactions unless you have disclosed such method of sale to NOVA previously in
writing. If you complete a MO/TO sales Transaction without having disclosed such
method of sale previously in writing, you will be in breach of the Agreement and NOVA
may immediately terminate the Agreement in addition to any other remedies available
under the Agreement, Laws, and Credit Card Rules, and you may have to pay a surcharge
on each such Transaction. You understand that Transactions processed via MO/TO are
high risk and subject to a higher incidence of Chargebacks. You are liable for all
Chargebacks and losses related to MO/TO sales Transactions. You may be required to
use an address verification service ("AVS") on MO/TO sales Transactions. AVS is not a
guarantee of payment and the use of AVS will not waive any provision of this Agreement
or validate a fraudulent Transaction. You will obtain the expiration date of the Credit
Card for a MO/TO sales Transaction and submit the expiration date when requesting
Authorization of the sales Transaction. For MO/TO sales Transactions, you will type or
print legibly on the signature line of the Transaction Receipt the following applicable
words or letters: telephone order or "TO," or mail order or "MO," as appropriate. NOVA
recommends that you obtain a signed Transaction Receipt or other proof of delivery
signed by Cardholder for MO/TO sales Transactions.
b) Recurring Transactions.
i) Requirements. For recurring Transactions (e.g., payment of insurance premiums or
subscriptions), you must obtain a written request from the Cardholder for such goods
and services to be charged to the Cardholder's account, the frequency of the recurring
charge, and the duration of time during which such charges may be made. You will
not complete any recurring Transaction after receiving: (i) a cancellation notice from
the Cardholder; (ii) a notice from NOVA or Member that authority to accept
recurring Transactions has been revoked; or (iii) a response that the Payment Device
is not to be honored. You must provide a subsequent order form to the Cardholder
when a Recurring Transaction is renewed by the Cardholder. Merchant is
responsible for ensuring its compliance with Laws with respect to recurring
Transactions.
ii) Limitations on the Resubmission of Recurring Transactions. In some limited
instances, you may resubmit a preauthorized recurring Transaction up to four (4)
times within sixteen (16) calendar days of the original Authorization request,
provided that the decline response is one of the following: (i) authorization denied;
(ii) insufficient funds; (iii) exceeds approval amount limit; or (iv) exceeds withdrawal
frequency.
iii) Recurring Transaction Receipts. You must print legibly on the Transaction
Receipt the words "Recurring Transaction." You must obtain the Cardholder's
signature, including an electronic signature or other similar authentication that is
effective under Laws, on the Transaction Receipt. For an Electronic Commerce
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 did 10.12.06 FINAL
INFO MATUN SYSTEMS*
Transaction, you must also include the frequency and duration of the Recurring
Transaction, as agreed to by the Cardholder, on the Transaction Receipt.
iv) Electronic Commerce Recurring Transactions. In addition to the above, for an
Electronic Commerce Transaction, you must also provide a simple and easily
accessible online cancellation procedure that complies with Laws, if the Cardholder's
request for goods or services was initially accepted online.
v) Recurring Transactions With Varying Amounts. For Recurring Transactions of
varying amounts, all of the following apply: (i) the order form must allow the
Cardholder to specify a minimum and maximum Transaction amount to be charged,
unless the Cardholder will be notified of the amount and date of each charge, as
specified in the remainder of this section; (ii) you must inform the Cardholder of their
right to receive, at least ten (10) calendar days prior to each scheduled Transaction
Date, written notification of the amount and date of the next charge; and (iii) the
Cardholder may choose to receive the notification in any of the following ways: (a)
for every charge; (b) when the Transaction amount does not fall within the range of
amounts specified on the order form; or (c) when the Transaction amount will differ
from the most recent charge by more than an agreed upon amount. Merchant is
responsible for ensuring that all communications with, and disclosures to,
Cardholders comply with Laws.
c) Multiple Transaction Receipts. You will include a description and total amount of
goods and services purchased in a single sales Transaction on a single Transaction
Receipt unless: (i) partial payment is entered on the Transaction Receipt and the balance
of the Transaction amount is paid in cash or by check at the time of the sales Transaction;
or (ii) a Transaction Receipt represents an advance deposit in a sales Transaction
completed in accordance with the Agreement and the Credit Card Rules.
d) Deposits.
i) Prior Consent. You will not accept for payment by Credit Card any amount
representing a deposit or partial payment for goods or services to be delivered in the
future unless you have disclosed such method of sale to NOVA previously in writing.
If you accept a Credit Card for payment or partial payment of goods or services to be
delivered in the future without having disclosed such method of sale to NOVA
previously in writing, you will be in breach of the Agreement and NOVA may
immediately terminate the Agreement in addition to any other remedies available
under the Agreement, Laws, and Credit Card Rules.
ii) Acceptance. If you have disclosed such method of sale to NOVA previously in
writing, then you will complete such sales Transactions in accordance with the
Agreement, Laws, and Credit Card Rules. Merchant must execute one Transaction
Receipt when processing the deposit Transaction and a second Transaction Receipt
upon processing the balance of the Transaction. You will note the words "deposit" or
"balance" on the applicable Transaction Receipt, as appropriate. You will not deposit
the Transaction Receipt labeled "balance" until the goods have been delivered to
Cardholder or until you have fully performed the services.
e) Future Delivery. You will not present any Transaction Receipt or Credit Transaction
Receipt to Member or NOVA for processing (whether by electronic means or otherwise)
that relates to the sale of goods or services for future delivery unless you have disclosed
such method of sale to NOVA previously in writing and you have been approved by
NOVA to submit such Transactions. If you have disclosed such method of sale to NOVA
previously in writing, you represent and warrant to Member and NOVA that you will not
rely on any proceeds or credit resulting from such sales Transactions to purchase or
furnish goods or services. You will maintain sufficient working capital to provide for the
delivery of goods or services at the agreed upon future date, independent of any credit or
proceeds resulting from Transaction Receipts or other Credit Transaction Receipts in
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
INFMMATION SYSTEMS'I
connection with future delivery sales Transactions or until you have fully performed the
services.
f) Electronic Commerce.
i) Electronic Commerce. You may not solicit or accept Electronic Commerce sales
Transactions unless you have disclosed such method of sale to NOVA previously in
writing, and you may process such Transactions only if the Transactions have been
encrypted by a third party vendor acceptable to NOVA and Member. If you submit
Electronic Commerce sales Transactions without having disclosed such method of
sale to NOVA previously in writing, you will be in breach of the Agreement and
NOVA may immediately terminate the Agreement in addition to any other remedies
available under the Agreement, Laws, and the Payment Network Regulations. You
understand that sales Transactions processed via the Internet are high risk and subject
to a higher incidence of Chargebacks. You are liable for all Chargebacks and losses
related to Electronic Commerce Transactions, whether or not: (i) such Transactions
have been encrypted; and (ii) you have obtained NOVA's consent to engage in such
Transactions. Encryption is not a guarantee of payment and does not waive any
provision of the TOS or otherwise validate a fraudulent Transaction. NOVA
recommends that you obtain a signed Transaction Receipt or other proof of delivery
signed by the Cardholder for all Electronic Commerce sales Transactions. All
communication costs and compliance with Laws related to Electronic Commerce
Transactions will be your responsibility. You understand that NOVA will not manage
the telecommunications link for Electronic Commerce Transactions and that it is your
responsibility to manage that link. Merchant authorizes NOVA and Member, at
Merchant's costs and expense, to perform an annual audit and examination of
Merchant's website and a due diligence review as required by the Payment Network
Regulations for Electronic Commerce Merchants.
ii) Requirements. For goods to be shipped on Electronic Commerce sales Transactions,
you may obtain authorization up to seven (7) days prior to the shipment date. You
need not obtain a second authorization if the Transaction Receipt amount is within
fifteen percent (15%) of the authorized amount, provided the additional amount
represents shipping costs. Further, your Web site must contain all of the following
information: (a) complete description of the goods or services offered; (b) returned
merchandise and refund policy; (c) customer service contacts, including electronic
mail address and/or telephone number; (d) complete address (street address, city,
state, zip code, and country) of the permanent establishment of the business; (e)
complete address of the permanent establishment of the business on either the
checkout screen (which displays the total purchase amount) or within the sequence of
Web pages presented to the Cardholder during the checkout process; (f) Transaction
currency (such as U.S. or Canadian dollars); (g) export or legal restrictions, if known;
(h) delivery policy; (i) customer data privacy policy; and 0) your method of
Transaction security. If you store Cardholder account numbers, expiration dates, or
other personal Cardholder data in a database, you must follow the applicable
Payment Network rules on securing such data. You may not retain or store
CVV2/CVC2 data after authorization for record keeping or additional authorization
processing.
26) INTERCHANGE. Interchange qualification requirements, as defined by the Credit Card
Associations, affect the Merchant's fees or surcharges owed for Transactions. Merchant will
pay a higher discount rate, higher fees, and surcharges for Transactions that do not meet the
best rate qualification criteria or have been processed in a manner other than for which the
Merchant was approved.
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INFCAMATION SYSTEMS$
Section D — Acceptance of American Express, Discover, Diners or JCB
27) ACCEPTANCE OF AMERICAN EXPRESS, DISCOVER, DINERS, AND/OR JCB
CARDS. If NOVA provides authorization and/or data capture services to Merchant for
American Express, Discover, Diners, and/or JCB Transactions, Merchant agrees to the
following provisions, in addition to the Definitions in Section (A) and the General Provisions
of Section (B) above.
28) ACCESS. Upon request and fulfillment of the following conditions, NOVA will provide
access to authorization and/or data capture services for American Express, Discover, Diners,
and/or JCB Transactions to Merchants who have been approved by American Express,
Discover, Diners, and/or JCB and who have entered into a separate agreement with American
Express, Discover, Diners, or JCB, respectively; provided, however that neither NOVA nor
Member shall be responsible for funding such Transactions.
29) FORWARDED INFORMATION. NOVA will forward certain information pertaining to
Merchant, including, but not limited to, contact information and DDA numbers, to one or
more of such Card Associations, unless NOVA receives from Merchant written instructions
to the contrary.
IN WITNESS WHEREOF, the parties hereto have executed this TOS.
MERCHANT
By:
Name:
JEFFREY L. MILLER
PRINT
Title: CITY MANAGER
NOVA INFORMATION SYSTEMS, INC.
By: . - • - - - - --
Name: p�l��Jafrr
PRINT
Title: /ai jOc. ►�$t� 6e*6.44 - Cavroke%-,
Date: f7 Ocxosor, Z006
("Effective Date")
WACHOVIA BANK, NATIONAL
ASSOCIATION
Name:
Title:
jr./ s
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 did 10.12.06 FINAL
INFO MATION SYSTEMS*
SCHEDULE A
SCHEDULE OF FEES
October 3, 2006
Discount Rate Schedule:
Visa / MasterCard
Interchange, Dues & Assessments (ID&A): At cost pass through (see Additional Info below)
NOVA processing Fee: 0.22%
Other Account Fees:
One time Setup feet
$95
Statement fee
$5.00
Monthly minimum fee
$25 per MID
Chargeback fee
$12 per occurrence
Voice Auth Fee
$.65
Voice Auth + Operator Assisted
$.95
Voice Auth + Issuer referral
$4.00
Non Bankcard Fees:
PIN -based Debit Card Transactions3 $.65 per item regional
NON-Bankcard (Amex, Discover) transaction fee: $.10 per item4
OptionalECS Electronic Check Conversion & Processina: (required RDM60001 check imager
w/VeriFone Omni or Hypercom T7PIus terminals)
ECS Check Verifications:
ECS w/Guarantee:
Monthly Minimum:
Returned Items:
NSF billing service:
NetCheckTM Image Web Access:
Reporting:
Basic Merchant reporting:
Advanced Reporting Service (MCPTM) by Nova
Monthly Access Fee
Terminal pricing:
Nova Certified Equipment Manufacturers:
Reprogram Fee:
$.30 per item
$0.30 per item + 1.99%
$25.00 per location (if applicable)
$4.00 per occurrence
$2.50 per occurrence
$24.95 Monthly per User
$0.00; Free through www.merchanteonnect.com
$20.00 per User; Full chain level reporting
Hypercom, VeriFone or Nurit
$25.00 per Terminal
Other (Non -certified) Equipment Manufactures: The Nova Network can process credit card
transaction from equipment certified on the following Networks:
- Vital (VisaNet)
$.05 per item
' Qualified Emerging Market rates. Based on current Interchange, Dues and Assessments (ID&A) from
Visa USA and Mastercard International. Other qualification levels subject to surcharges pursuant to the
current ID&A. If there is an increase in ID&A, Nova will adjust rates accordingly.
2 All location initial setup. Subsequent add -on locations will be $35 ea.
3 PIN -based Debit assumes certification to the Nova Network for PIN -encryption.
4 Discount rates and fees applicable direct from Issuers.
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
INFORMATION SYSTEMS V
- Nova no extra per item fee
- Paymentech $0.15 per item
Hypercom T7PIus Terminal Printer combo: $649.00 purchase or $29.00/mos lease (36 mos)5
Hypercom P1300 PinPad: $175.00 purchase or $8.00/mos lease (36mos)
VeriFone Omni 3730LE Terminal Printer combo
VeriFone P1000SE Pin Pad
RDM6000i Check Imager:
Wireless Processing
Nurit 3010 Wireless Terminal:
Wireless processing Monthly Fee:
Wireless one time Setup Fee:
Internet Processing
ViaKLIXTm by Nova Website Gateway
ViaKLIXTM one time Setup fee:
$599.00 purchase or $26.00/mos Lease (36 months)
$165.00 purchase or $7.00/mos lease (36 months)
$645.00 purchase or $28.00/mos lease (36mos)
$1,250.00 purchase or $58.00/mos lease (36mos)
$20.00
$25.00
$20.00 per month
$195.00
3`d Party Internet Payment Gateway Trxns: $0.00; No cost (above rates/fees apply). Internet
payment engine (i.e. Harbor Payments; VerSign, Authorize.net) must be certified to one of the following
payment networks:
- Vital (VisaNet)
- Nova
- Paymentech
Software PC Processing
ViaWARPTm by Nova
Up to 10 User License
Monthly support fee:
Up to 50 User License
Monthly support fee:
Up to 150 User Licenses
Monthly support fee:
$0.10 per item
$0.00
$0.15 per item
$599.99
$12.00 per Loc ($200 max)
$999.99
$15.00 per Loc ($200 max)
$1599.99
$25.00 per Loc ($200 max)
Additional Information
• 24-Hour funds availability for Wachovia banking customers maintaining a business
checking account. Daily processing deposits transmitted to NOVA prior to 2:OOAM EST
will be credited to your business checking account the next business day following
transmission.
• www.merchantconnect.com. NOVA'S online interactive Customer Service site provides
an interactive support site to our merchant base for accessing information about your
NOVA accounts including daily updates of your processing statement, free of charge.
5 All lease pricing based on 36 month non -cancelable lease from LADCO Leasing, Inc.
6 Deluxe Ver.; Required for integration with existing compatible software applications.
28 of 31
NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 did 10.12.06 FINAL
INFORMATION SYSTEMS'*'
• Analysis Billing availability. For our Wachovia business checking clients, we can run
your fees through the Bank Analysis. This offers you the benefit of having the Bank pay
the discount fees directly to NOVA. The Bank will then offset these fees in later debits
and credits to your bank accounts utilizing the power of your earnings credits and
compensating balances.
29 of 31
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NOVA(City of Tamarac, FL) TERMS OF SERVICE v.06.30.06 dtd 10.12.06 FINAL
INFOAMATION SYSTEMS'*'
SCHEDULE B
AFFILIATED ENTITIES
This Schedule B to the Terms of Service is dated as of this 17 day of &I'O& ' , 20M.
MERCHANT
By: 4� �;%�.'� C . Iyt a, G�
Name: JEFFREY L. MILLER
PRINT
Title: CITY MANAGER
NOVA ORMATION SYSTEMS, INC.
By:
Name: k cw /a ay'j' l 74.
PRINT Title: AMIN-. AwrC �1 pewE,44
WACHOVIA BANK, NATIONAL
ASSOCIATI N
By: Z""Y�
Name: Z B4cXA5
1 �
Title:�PAZ
31 of 31