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HomeMy WebLinkAboutCity of Tamarac Resolution (146)1 Temp. Reso. #9765 Page 1 April 29, 2002 Rev. #1 May 17, 2002 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2002 - 146 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO ACCEPT AND EXECUTE A GOVERNMENT MERCHANT PROCESSING AGREEMENT WITH NOVA INFORMATION SYSTEMS AND WACHOVIA BANK, NATIONAL ASSOCIATION F/K/A FIRST UNION NATIONAL BANK FOR THE PROVISION OF CREDIT CARD PROCESSING SERVICES AND A MERCHANT DEBIT CARD PROCESSING AGREEMENT WITH NOVA INFORMATION SYSTEMS FOR THE PROVISION OF DEBIT CARD G FORVICSEVERABIL,D PROVIDING OR CONFLICTS; PROVIDING PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Tamarac intends to provide a higher level of service and customer satisfaction by allowing City customers to pay Utility fees, occupational licenses, Building Department fees, and Parks and Recreation fees by credit or debit card; and WHEREAS, implementing credit and debit card processing will reduce administrative burden, reduce time spent on collection of bad debt, provide more flexibility, and streamline the remittance process; and WHEREAS, during the solicitation process for the City's banking services, information was requested regarding debit and credit card processing; and WHEREAS, Wachovia Bank, National Association f/k/a First Union National Bank in conjunction with Nova Information Systems submitted information and was evaluated by a committee consisting of the Director of Finance, Controller, Purchasing and Contracts Manager, Finance and Policy Officer, and Customer Service Supervisor and determined to be the most responsive proposer for this service; and WHEREAS, funding for the credit and debit card processing fees is available in the Temp. Reso. #9765 Page 2 April 29, 2002 Rev. #1 May 17, 2002 Utilities and Administration Fund; and WHEREAS, funding for the credit and debit card processing equipment and software is available in the Information Technology Fund; and WHEREAS, it is the recommendation of the Interim Director of Finance/Assistant City Manager, Purchasing and Contracts Manager and Administrative Services Manager that the City approve Nova Information Systems and Wachovia Bank, National Association f/k/a First Union National Bank for the provision of credit card processing and Nova Information Systems for the provision of debit card processing; 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 accept and execute an agreement with Nova Information Systems and Wachovia Bank, National Association f/k/a First Union National Bank for the provision of credit card processing and an Agreement with Nova Information Systems for the provision of debit card processing; and 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 and execute Agreements between the City of Tamarac, Florida, and Nova Information Systems and Wachovia Bank, National Association f/k/a First Union National Bank for the provision of credit card processing and Nova Information Systems for the provision of debit card processing (copies of which are attached hereto as "Attachments 1 and 2"). SECTION 3: All resolutions or parts of resolutions in conflict herewith are hereby Temp. Reso. #9765 1 1 1 Page 3 April 29, 2002 Rev. #1 May 17, 2002 repealed to the extent of such conflict. SECTION 4: If any clause, section, 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 12th d of�JUne,2002. JOE SCHREIBER MAYOR ATTEST: MARION SWENSON, CMC CITY CLERK I HEREBY CERTIFY that I have approved this City Attorney RECORD OF COMMISSION VOTE: MAYOR SCHREIBER AYE DIST 1: VIM. PORTNER AYE DIST 2: COMM. MISHKIN AYE DIST 3: COMM. SULTANOF AYE DIST 4: COMM. ROBERTS AYE signage, printed, or broadcast material or otherwise, shall comply with the applicable Network Rules. Merchant acknowledges and agrees that in displaying any such trademark and/or service mark and in promoting any such trademark or service mark, Merchant will be acting under Sponsor Bank's control and supervision and further subject to approval by the applicable Network. Merchant shall under no circumstances be deemed to be a licensee or sub -licensee of any trademark or service mark of any Network, nor shall Merchant otherwise be deemed to have or to acquire any right, title, or interest in or to any such trademark or service mark. 3. Returns and Adiustments (a) Merchant agrees to attempt to settle in good faith any dispute between Merchant and Debit Cardholder involving a Debit Card Sale. Merchant shall establish and maintain for itself a fair, consistent policy for the exchange and return of merchandise and for the adjustment of amounts due on Debit Card Sales. (b) Except as the Networks may permi4 Merchant shall not make any cash refunds or payments for returns or adjustments on Debit Card Sales but shall instead complete a form provided or approved by NOVA (each such prepared form an "Adjustment Draft"). The Sales Transmittal for any Debit Card Sale for which no refund or return will be accepted by Merchant must be clearly and conspicuously marked (including on the Debit Cardholder's copy) as "final sale" or "no return" and must in all other respects comply with the requirements of the applicable Network. 4 4. Presentation of Acceptance of Sales Transmittals and Adjustment Drafts. (a) Merchant shall provide for the electronic transmission to NOVA of all Sales Transmittals or Adjustment Drafts hereunder in a manner acceptable to NOVA and Sponsor Bank. Information to be transmitted shall include but not be limited to that described in Section 2 of this Agreement and Merchant agrees to include any additional information requested by NOVA. or Sponsor Bank., Merchant shall make a good faith effort to ensure that electronic transmission to NOVA is made within one banking business day after the transaction date. Merchant will not extend the time of payment for or extend credit for any part of a Debit Card Sale. Merchant represents and warrants that the electronic transmission of each Sales Transmittal and Adjustment Draft shall evidence a true record of the Debit Card Sale transaction reflected thereon. (b) NOVA and Sponsor Bank shall process. Debit Card Sales electroWaBy transmitted to NOVA by Merchant, and Sponsor Bank shall promptly credit, debit or charge, as applicable, the appropriate amount to the Merchant Account. Within a reasonable time after the end of each calendar month Sponsor Bank shall calculate in accordance with instructions from NOVA the applicable amount of fees and other charges owed by Merchant, and Sponsor Bank shall debit or charge, as applicable, the Merchant Account in the amount of such fees and other charges (including without limitation, the applicable discount). The initial amount of such fees to be paid by Merchant are. as set forth on Schedule 2 to this Agreement. Such fees may be changed at any time by NOVA, effective Wori•30 days written notice to Merchant. k (c) NOVA or Sponsor Bank may refuse to accept or may revoke its acceptance of any Sales Transmittal or Adjustment Draft, or the electronic transmission thereof if applicable, and Sponsor Bank may, without prior notice to Merchant, debit, charge or credit (as Vrupriate) the Merchant. Account in the corresponding amount, in any of the following instances: (i) The Debit Card was completed without prior. Authorization; (ii) The Sales Transmittal or Adjustment Draft was completed, presented or transmitted electronically by Merchant under circumstances constituting a breach of any agreement, condition, representation, warranty or duty of Merchant under this Agreement; (iii) The Debit Card Sale was in violation of applicable law or the rules or regulations of any governmental agency (Federal, state, municipal or otherwise) or the rules or regulations of the applicable Network; (iv) The Debit Cardholder of the Debit Card used in the Debit Card Sale is Mercbant, any partner of or shareholder in Merchant, or any affiliate, spouse or immediate family member of any of them: tr WITNESS THE DUE EXECUTION HEREOF as of this Merchant Debit Card Processing Agreement as of the day of 20_. Address for Notices - Merchant MERCHANT: Address for Notices - NOVA Loci A. Laughlin, Product Manager NOVA Information Systems, Inc. One Concourse Parkway, Suite 300 Atlanta, Georgia 30328 SPONSOR BANK Address for Notices: SPONSOR BANK - Address for Notices: SPONSOR BANK - Address for Notices: B: Title:�'� NOVA INFORMATION SYSTEMS, INC. By: Title: SPONSOR BANK: (For all Networks accepted by Merchant on Schedule I unless otherwise indicated below) By: Title: SPONSOR BANK: (If necessary, indicate applicable Networks) By: Tide: SPONSOR BANK: (If necessary, indicate applicable Networks) By: Title: 519AP.R970430 White - Bank Yellow - MSPBank Pink - Merchant 2 of 4 MERCHANT DEBIT CARD PROCESSING AGREEMENT THIS MERCHANT DEBIT CARD PROCESSING AGREEMENT ("Agreement") is made as of the date set forth on the signature page hereto by and among the undersigned Sponsor Bank(s), NOVA information Systems, Inc., a Georgia corporation ("NOVA"), having its principal place of business and headquarters offices at One Concourse Parkway, Suite 300, Atlanta, Georgia 30328, and the undersigned merchant ("Merchant") and is subject to and contingent upon the approval of each Sponsor Bank. WHEREAS, Merchant desires to honor at the locations set forth on Schedule 1 hereto debit cards (each a "Debit Card") and, collectively, the "Debit Cards") issued by or serviced by the electronic funds transfer networks listed on Schedule 1, as Schedule 1 may be amended from time to time by written consent of each of the patties hereto (each of such networks individually a "Network" and all of such networks, the "Networks") in connection with the sales (each a "Debit Card Sale") of merchandise or services to the holders of such Debit Cards ("Debit Cardholders"), and NOVA and Sponsor Bank desire to accept from Merchant VIA ELECTRONIC TRANSMISSION ONLY completed transmittals evidencing such Debit Card Sales (each transmittal, a "Sales Transmittal" and all such transmittals, "Sales Transmittals") and Adjustment Drafts (as hereinafter defined) with respect to Debit Cards Sales initiated through the use of Debit Cards. The patties to this Agreement, intending to be legally bound, agree to the following terms and conditions: 1. General: Merchant Account: Merchant agrees to honor all valid Debit Cards issued by the Networks and properly presented by Debit Cardholders to facilitate debits to Debit Card accounts in payment for merchandise or services. Debit Cardholders shall be entitled to the same services and return and adjustment privileges as Merchant extends to cash customers and Merchant shall not impose any special conditions (unless permitted by the applicable Network) in connection with Debit Card Sales. Merchant shall designate a demand deposit account to be used in order to facilitate payment of amounts due from time to time between Merchant and Sponsor Bank hereunder (the "Merchant Account"). All credits, charges and debits in connection with Debit Card Sales hereunder shall be made to the Merchant Account. 2. Compliance; Authorization; Other Requirements. In connection with the processing of Debit Card Sales through Networks, Merchant agrees to comply (and hereby assumes all liability for any failure to so comply) with the operating rules and regulations of such Networks as such rules and regulations may exist from time to time (the "Network Rules"). Every Debit Card Sale must be immediately electronically authorized (and shall not be stored) as directed by NOVA ("Authorization"). When Authorization is obtained, Merchant shall cause to be electronically printed the authorization number on the Sales Transmittal. In addition, Merchant agrees to comply with each of the following requirements: (a) Comohance: Merchant shall comply with the Network Rules and with all applicable Federal, state and local laws, rules and regulations, including without limitation the Electronic Funds Transfer Act and Regulation E of the Board of Governors of the Federal Reserve System. Without limiting the generality of the foregoing, Merchant agrees that: (i) For each Debit Card Sale transacted with a Debit Card (or series of Debit Card Sales transacted with a Debit Card by the same Debit Cardholder), the Debit Cardholder shall be required to enter his Personal Identification Number ("PIN") through a PIN pad located at the point of sale ("POS"); (ii) Each PIN pad shall be situated so as to permit Debit Cardholders to input their PINS without revealing them to other persons, including Merchant personnel; (W) Merchant shall instruct its personnel (A) that they shall under no circumstances ask any Debit Cardholder to disclose his or her PIN and (B) in the event that any of Merchant's personnel nevertheless becomes aware of any Debit. Cardholder's PIN, such persoanel shall not use such PIN or create or maintain any record of such PIN, and shall not disclose such PIN to any other perion; (iv) Merchant shall ensure that the PIN message is encrypted from the PIN pad to the POS terminal and from the POS terminal to the switch of the applicable Network and back so that the PIN message will'not be in the clear at any point in the transaction. Merchant shall comply with any other requirements relating to PIN security as shall be required by NOVA, Sponsor Bank or by any Network; (v) For each Debit Card Sale transacted with a Debit Card a transaction receipt in conformity with Regulation E shall be made available to the Debit Cardholder; (vi) Merchant agrees not to establish a minimum or maximum transaction amount as a condition for use of a Debit Card and not to charge any Debit Cardholder for the use of any Debit Card in connection with a Debit Card Sale, unless the Network Rules applicable to such Debit Card permit such a charge to be made and unless the Merchant complies with all applicable Network Rules including without limitation those relating to receipt disclosure, signage, Debit Cardholder statement information and the reporting of such fees in a separate field; (vii) Merchant shall not collect tax as a separate cash transaction; and (viii) POS terminals used by Merchant for Debit Card Sales must be approved by NOVA and Sponsor Bank and certified for use by NOVA and Sponsor Bank and by all of the Networks (such approval and certification to include both hardware and software) and must in all cases include PIN pads (which must be encrypting and must allow entry of up to sixteen character PINs), printers and a keyboard lock function. Such terminals must support on-line authorization and capture of all data required for processing Debit Card Sales transacted with Debit Cards. Such terminals must also support automated printing of receipts for Merchant and Debit Cardholders and must also be able to properly identify authorization and denial status as required by the Network Rules. Merchant is responsible for compliance with all Network Rules regarding the use of POS terminals, regardless of whether such POS terminals are obtained by Merchant through NOVA or through a third patty. (b) Credit' Referrals. Merchant shall promptly initiate a refund to the customer (which may be made in cash, by an Adjustment Draft or with a check or cashier's check, as permitted by the applicable Network Rules) whenever Merchant determines that a Debit Card Sale transacted with a Debit Card previously effected should be canceled or reversed for any reason (e.g., because the Debit Card Sale transacted with a Debit Card was incorrectly transmitted, the amount of the Debit Card Sale trurisacted with a Debit Card was incorrectly computed, or the underlying transaction was canceled). (c) Error Resolution. Merchant shall cooperate with NOVA and Sponsor Bank and with each applicable Network and its other members in order to resolve any errors or alleged errors relating to Debit Card Sales transacted with Debit Cards. Merchant shall maintain adequate records to assist in such error resolution; such records shall be maintained for two years or the period of time requited by the applicable Network Rules, whichever is greater. Merchant shall permit and shall promptly pay all expenses of periodic examination and audit of all functions related to each Network, at such frequency as the applicable Network deems appropriate, by independent of other professionals satisfactory to such Network. The scope of such examination and audit shall meet such standards as may be prescribed by such Network, and the results of such examination and audit shall be made available to such Network. (d) Certain Prohibited Transactions. Merchant shall under no circumstances accept cash, checks or other negotiable items from any Debit Cardholder and forward a credit through any Network (i.e., as a purported payment or deposit to an account maintained by the Debit Cardholder). Merchant will not forward through any Network any transaction or initiate any reversal of a transaction that did not originate between Merchant and the Debit Cardholder. (e) Prevention of Fraud. Merchant agrees to fully cooperate with NOVA and Sponsor Bank and with each Network in the event that NOVA, Sponsor Bank or any Network determines that there is a substantial risk of fraud arising from Merchant's access to such Network and Merchant agrees to take whatever actions NOVA, Sponsor Bank or Network reasonably deems necessary in order to protect such Network, its members, and its cardholders and, under such circumstances, neither the Network, NOVA, Sponsor Bank nor any of their respective personnel shall have any liability to Merchant for any action taken in good faith. (f) DisylaX of Network Trade s • Protection of Trade Secrets. In order to inform Debit Cardholders that Debit Card Sales may be transacted with Debit Cards at Merchant's retail locations, Merchant shall prominently display the trademark and/or service mark of each Network at each such location and shall display signage of each Network at the entrance to such location, near all POS terminals and on the window of such location. All uses by Merchant of any Network trademark and/or service mark, whether in 519AP.R970430 White -Bank Yellow-MSP/Bank Pink -Merchant 1 of 4 Merchant DBA Name City Of Tamarac Merchant Number (if available) SCHEDULE l -NETWORKS Merchant shall be allowed to accept Debit Cards for Debit Card Sales on the Network(s) indicated below by check mark (d): Ll TransAlliance (d/b/a ACCEL) U-�' Money Access Systems (d/b/a MAC) Monetary Transfer System (d/b/a BankMate) U� Maestro ❑ Cash Station Ll Magic Line 0 Star Systems, Inc. (d/b/a Star) Internet, Inc. (d/b/a Tyme) [ate Southeast Switch Inc. (d/b/a Honor) Qlo NYCE Corporation (d/b/s NYCE) <1✓ Interlink [a- Pulse EFT Association (d/b/a Pulse) 13 Other LOCATIONS City of Tamarac, (for the acce tan City Ha�1, of Debit Cards for Debit Card Sales) 7525 NW 88th Ave., Tamarac FL 33321 (1) (2) City of Tamarac, Building Dept., 8191 NW 88th Ave,, Tamarac FL 33321 (3) City of Tamarac, Community Center, 8601 W. Commercial Blvd., Tamarac �33319 (a) City of Tamarac, Satellite C.H., 4267 W. Commercial, 33321 (5) (6) (7) (g) (9) (10) (If necessary, attach additional sheets, and initial and date each page). n� Schedule 2 - Fees Debit Activation Fee: S Other: S s Monthly Transaction Fees: s A per item transaction fee will be charged for each Debit Card Sale based upon the following schedule for the applicable Networks: Network Transaction Fee Network Transaction Fee TransAlliance (d/b/a ACCEL) $ Money Access Systems (d/b/a MAC) Monetary Transfer System (d/b/a BankMate) $ Maestro s Cash Station $ Magic Line $ Star Systems, Inc. (d/b/a Star) $ Internet, Inc. (d/b/a Tyme) S Southeast Switch Inc. (d/b/a Honor) s , S� NYCE Corporation (d/b/a NYCE) $ j Interlink s , 5_ Pulse EFT Association (d/b/a Pulse) s Other $ Beginning with the first full after execution of this Agreement the minimum monthly transaction fees payable by Merchant under the Agreement shall be equal to the greater of: (i) s_ per Network; or (ii) the aggregate of the per item transaction fees set forth above. Annual fee per Merchant location: s SURCHARGING IS NOT ALLOWED. The only exceptions (with limitations) are the following Networks: .Network MERCHANT; Y Title: Date: .,7 �z /G/ r� Location NOVA INFORMATION SYSTEMS, INC. By: Title: Date: NOVA Information Systems. Inc. is an equal opportunity employer. 596AP.980601 White - Bank Yellow - MSP/Bank Pink - Merchant ATTEST: J Marion Swenson, CIVIC City Clerk Date .. _.... CITY F TAMAR C -A Jo S eiber, Mayor Date ._.— _... �..� Jeffrey L. it r, OlVy Manager Date GOVERNMENT MERCHANT PROCESSING AGREEMENT This Merchant Processing Agreement ("Agreement") is entered into as of the date set forth below, by and among CITY OF TAMARAC FLORIDA a municip ality ("Merchant" or "you"), NOVA Information Systems, a Georgia corporation ("NOVA") and Wachovia Bank, National Association f/k/a First Union National Bank, Charlotte, N.C., a national banking association ("Member"). Recitals A. Merchant desires to accept credit cards validly issued by members of Visa U.S.A., Inc. ("Visa") and MasterCard International, Incorporated ("MasterCard") ("Cards"). B. NOVA and Member desire to provide credit card processing services to Merchant. C. Therefore, Merchant, NOVA and Member agree as follows: Terms and Conditions 1. Honoring Cards. A. Without Discrimination. You will honor, without discrimination, any Card properly tendered by a Cardholder. "Cardholder" means a person possessing a Card and purporting to be the person in whose name the Card is issued. B. Cardholder Identification. You will identify the Cardholder and check the expiration date and signature on each Card. You will not honor any Card if: i. the Card has expired, ii. the signature on the sales draft does not correspond with the signature on the Card, or iii. the account number embossed on the Card does not match the account number on the Card's magnetic stripe (as printed in electronic form) or the account number is listed on a current Electronic Warning Bulletin file. Unless permitted under the Laws and Rules (defined below), you will not require a Cardholder to provide personal information, such as a home or business telephone number, a home or business address, or a driver's license number, as a condition for honoring a Card. C. Card Recover. You will use your reasonable, best efforts to recover any Card: i. on Visa Cards, if the printed four digits above 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 of the Card or the designated voice authorization center to retain it, iii. if you have reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder, or iv. for MasterCard Cards, the embossed account number, indent printed account number and/or encoded account number do not agree, or the Card does not have a MasterCard hologram on the lower right corner of the Card face. Bank Service Provider for First Union National Bank Charlotte, North Carolina D. Surcharges. You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card, consistent with the Laws and the 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 using a Card. E. Return Policy. You will properly disclose to the Cardholder, at the time of the Card transaction and in accordance with the Rules, any limitation you have on accepting returned merchandise. F. 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 Card transaction unless Member or NOVA refuses to accept the Sales Draft (as defined in Section 3) or revokes its prior acceptance of the Sales Draft (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 Sales Draft, and if you receive such payments, you promptly will remit them to Member. G. Disputes With Cardholders. All disputes between you and any Cardholder relating to any Card transaction will be settled between you and the Cardholder. Neither NOVA nor Member bears any responsibility for such transactions. H. Employee Actions. You are responsible for your employees' actions while in your employ. 2. Authorization. A. Required on all Transactions. You will obtain a prior authorization via electronic terminal or similar device before completing any transaction. You will follow any instructions received during such authorization process. Upon receipt of authorization, you may consummate only the transaction authorized and must note on the Sales Draft the authorization number. Where authorization is obtained, you will be deemed to warrant the true identity of the customer as the Cardholder. B. Effect. Authorizations are not a guarantee of acceptance or payment of the Card transaction and will not waive any provision of this Agreement or otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card. C. Unreadable Magnetic Stripes. If you authorize and present Card transactions electronically and your terminal is unable to read the magnetic stripe on the Card, you will obtain an imprint of the Card and the Cardholder's signature on the imprinted draft before presenting the Sales Draft to Member and NOVA for processing. 3. Presentment of Sales Drafts. A. Forms. You will use a sales draft or other form approved by Member and NOVA ("Sales Draft") to document each Card transaction. Each Sales Draft will be legibly imprinted with: -2- i. Merchant's name and account number, ii. the information embossed on the Card presented by the Cardholder (either electronically or manually), iii. the date of the transaction, iv. a brief description of the goods or services involved, V. the transaction authorization number, vi. the total amount of the sale (including any applicable taxes) or credit transaction, and vii. adjacent to the signature line, a notation that all sales are final, if applicable. B. matures. Sales Drafts must be signed by the Cardholder. The requirement for the Cardholder's signature on the Sales Draft will only be waived if the Card transaction is a valid mail/telephone order Card transaction which fully complies with the requirements set forth in this Agreement. C. Reproduction of Information. If the following information embossed on the Card and the Merchant's name is not legibly imprinted on the Sales Draft, you will legibly reproduce: i. the Cardholder's name, ii. account number, iii. expiration date, and iv. the Merchant's name and place of business. Additionally, for MasterCard transactions, you will legibly reproduce the name of the bank that issued the Card as it appears on the face of the Card. D. Delivery and Retention of Sales Drafts. You will deliver a complete copy of the Sales Draft or credit voucher to the Cardholder at the time of the transaction. You will retain the "merchant copy" of the Sales Draft or credit memorandum for at least 3 years following the date of completion of the Card transaction (or such longer period as the Rules may require). E. Electronic Transmission. if you utilize electronic authorization and/or data capture services, you will enter the data related to a sales or credit transaction into a computer terminal or magnetic stripe reading terminal no later than the close of business on the date the transaction is completed. If you provide your own electronic terminal or similar device, such terminals must meet NOVA's requirements for processing transactions. Information regarding a sales or credit transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by you to NOVA or its agent in the form NOVA from time to time specifies, or as required under the Laws or Rules. If Member or NOVA requests a copy of a Sales Draft, credit voucher or other transaction evidence, you will provide it within 3 business days following the request. 4. Deposit of Sales Drafts. A. Funds. Deposits. You agree that this Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. § 365, as amended from time to time. Subject to this Section, Member will deposit to the Merchant Account (defined in Section 6 below) all funds evidenced by Sales Drafts (whether evidenced in writing or by electronic means) complying with the - 3 - terms of this Agreement and the Rules and will provide you provisional credit for such funds (less recoupment of any credit(s), adjustments, fines, chargebacks or fees). You acknowledge that your obligation to NOVA and Member for all amounts owed under this Agreement arise out of the same transaction as Member's obligation to deposit funds to the Merchant Account ii. Provisional Credit. Notwithstanding the previous sentences, under no circumstance will Member or NOVA be responsible for processing credits or adjustments related to Sales Drafts not originally processed by Member and NOVA. All Sales Drafts and deposits are subject to audit and final checking by Member and NOVA, and may be adjusted for inaccuracies. You acknowledge that all credits provided to you are provisional and subject to chargebacks and adjustments in accordance with the Rules and if such credit are the subject of suspected fraud or a breach of this Agreement, whether or not a transaction is charged back by the Card issuer. B. Chargebacks. You are fully liable to NOVA and Member for all transactions returned to NOVA or Member for whatever reason, otherwise known as "chargebacks". 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 Merchant Account, the Reserve Account, or any other account held at Member or at another financial institution the amount of all chargebacks. You will fully cooperate with NOVA and Member in complying with the Rules regarding chargebacks. C. Excessive Activity. Your presentation to NOVA of Excessive Activity will be a breach of this Agreement and cause for immediate termination of this Agreement. "Excessive Activity" means, during any monthly period, chargebacks and/or retrieval requests in excess of one percent (1 %) of the average monthly dollar amount of your Card transactions. You authorize, upon the occurrence of Excessive Activity, Member and NOVA to take additional actions as either of them may deem necessary, including, but not limited to, suspension of processing privileges or creation or maintenance of a reserve account in accordance with this Agreement. D. Credits. i. Credit Memoranda. You will issue a credit memorandum, instead of making a cash advance, a disbursement or a refund on any Card transaction. Member will debit the Merchant Account for the total face amount of each credit memorandum submitted to NOVA. You will not submit a credit relating to any Sales Draft not originally submitted to NOVA, nor will you submit a credit that exceeds the amount of the original Sales Draft. You will, within the time period specified by applicable law, provide NOVA with a credit memorandum or credit statement for every return of goods or forgiveness of debt for services which were the subject of a Card transaction. ii. Revocation of Credit. Member or NOVA may refuse to accept any Sales Draft or revoke its prior acceptance of a Sales Draft in the following circumstances: (a) the transaction giving rise to the Sales Draft was not made in compliance with all terms and conditions of this Agreement, the Laws and the Rules; (b) the Cardholder disputes his liability to Member for any reason, including but not limited to those chargeback rights enumerated in the Rules; or (c) the transaction -4- giving rise to the Sales Draft was not directly between you and the Cardholder. You will pay Member or NOVA, as appropriate, any amount previously credited to you for a Sales Draft not accepted by Member or NOVA. E. Reprocessi►n . Notwithstanding any authorization or request from the Cardholder or customer, you will not reenter or reprocess any Card transaction which has been charged back. F. Factoring. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not authorized by the Cardholder. You will not sell or disclose to third parties Card account information other than in the course of performing your obligations under this Agreement. 5. Other Types of Transactions. A. Mail Order. You may not solicit or accept mail orders or telephone orders or any transaction in which the Cardholder and Card are not present ("mail/telephone orders") without NOVA's or Member's prior written authorization. Mail/telephone orders completed without prior written consent of NOVA or Member will be a breach of this Agreement and cause for immediate termination in addition to any other remedies available under the Laws and the Rules. You will obtain the expiration date of the Card for a mail/telephone order and submit the expiration date when obtaining authorization of the Card transaction. For mail/telephone order transactions, you will type or print legibly on the signature line of the Sales Draft the following applicable words or letters: telephone order or "TO"; or mail order or "MO". B. Recurring Transactions. For recurring transactions, 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) notice from NOVA or Member, or (iii) a response that the Card is not to be honored. You must print legibly on the Sales Draft the words "Recurring Transaction". C. Multiple Sales Drafts. You will include a description and total amount of goods and services purchased in a single sales transaction on a single Sales Draft or transaction record, unless: (i) partial payment is entered on the Sales Draft or transaction record and the balance of the transaction amount is paid in cash or by check at the time of transaction, or (ii) a Sales Draft represents an advance deposit in a Card transaction completed in accordance with this Agreement and the Rules. D. Partial Coml2letion. i. Prior Consent. You will not accept for payment by Card any amount representing a deposit or partial payment for goods or services to be delivered in the future without the prior written consent of NOVA or Member. The acceptance of a Card for payment or partial payment of goods or services to be delivered in the future without prior consent will be deemed to be a breach of this Agreement and cause for immediate termination, in addition to any other remedies available under the Laws or Rules. INE ii. Acceptance. If you have obtained prior written consent, then you will complete such Card transactions in accordance with the terms set forth in this Agreement, the Rules, and the Laws. Cardholders must execute one Sales Draft upon making a deposit with a Card and a second Sales Draft upon paying the balance. You will note upon the Sales Draft the words "deposit" or "balance" as appropriate. You will not deposit the Sales Draft labeled "balance" until the goods have been delivered to Cardholder or you have fully performed the services. E. Future Delivery. You will not present any Sales Draft or other memorandum to Member or NOVA for processing (whether by electronic means or otherwise) which relates to the sale of goods or services for future delivery without Member or NOVA's prior written authorization. F. Electronic Commerce Transactions. You must get NOVA's consent to process electronic commerce transactions, and you may process such transactions only if the transactions have been encrypted by a third party vendor acceptable to NOVA and Member. You understand that transactions processed via electronic commerce are high risk and subject to a higher incidence of chargebacks. All communication costs related to electronic commerce transactions will be your responsibility. You understand that NOVA will not manage the electronic commerce telecommunications link, that it is your responsibility to manage that link, that NOVA is not responsible for receiving transactions, and that NOVA is not responsible for responding to you unless NOVA actually receives a transaction from you. 6. Merchant Account. A. Establishment and Authority, You will establish and maintain with Member one or more commercial checking account(s) to facilitate payment for Card transactions ("Merchant Account"). You will maintain sufficient funds in the Merchant Account to accommodate all transactions, including but not limited to fees, fines and chargebacks, contemplated by this Agreement. You irrevocably authorize NOVA, NOVA's agent, and Member to debit the Merchant Account for chargebacks in accordance with the Rules, and for fees and any other penalties or payments under this Agreement. This authority will remain in effect for at least 2 years after the termination of this Agreement. Merchant will notify NOVA 48 hours before Merchant changes the Merchant Account. B. Deposits. Member will deposit all Sales Drafts to the Merchant Account subject to Section 4 of this Agreement. You authorize Member or NOVA to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant you conditional credit for any entry. C. Asserted Errors. Promptly examine all statements relating to the Merchant Account, and immediately notify NOVA in writing of any errors. 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 us within 30 days after you received the periodic statement containing the asserted error. You may not make any claim against Member or NOVA for any loss or expense relating to any asserted error for 60 days immediately following our receipt of your written notice. Ifflic D. Hold Harmless. To the extent permitted by and amounts provided for by law, you will hold NOVA and Member harmless for any action they take against the Merchant Account pursuant to this Agreement. This section will survive termination of this Agreement. Nothing contained herein is intended nor shall be construed to waive the City's rights and immunities under the common law or Florida Statute s. 768.28 as amended from time to time. This provision may not be considered to increase or otherwise waive the limits of liability to third -party claimants established by Florida Statute s. 768.28. E. ACH Authorization. You authorize Member, NOVA, and NOVA's agent to initiate debit/credit entries to the Merchant Account, in accordance with this Agreement and the Authorization Agreement Regarding Automatic Funds Transfer (ACH Credits/Debits) provided by NOVA (the "ACH Authorization"). The ACH Authorization will remain in effect after termination of this Agreement. In the event you change the Merchant Account, you will execute a new ACH Authorization. 7. Security Interests, Reserve Account, Recoupment and Set -Off. A. Security Interests. i. Security Agreement. This Agreement will constitute a security agreement under the Uniform Commercial Code. You grant to Member and NOVA a security interest in and lien upon: (i) all funds at any time in the Reserve Account (as defined below), regardless of the source of such funds, (ii) present and future Sales Drafts, and (iii) any amount which may be due to you under this Agreement, including, without limitation, all rights to receive any payments or credits under this Agreement (collectively, the "Secured Assets"). You agree to provide other security to NOVA and Member upon request to secure your obligations under this Agreement. These security interests and liens will secure all of your obligations under this Agreement and any other agreements between Merchant, NOVA and/or Member including, but not limited to, your obligation to pay any amounts due to Member or NOVA. This security interest may be exercised by NOVA and Member without notice or demand of any kind by making an immediate withdrawal or freezing the Secured Assets. ii. Perfection. Upon request of Member or NOVA, you will execute one or more financing statements or other documents to evidence this security interest. You represent and warrant that no other person or entity has a security interest in the Secured Assets. With respect to such security interests and liens, Member and NOVA will have all rights afforded under the Uniform Commercial Code, any other applicable law and in equity. You will obtain from Member and NOVA written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a contract of recoupment and Member and NOVA are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the Secured Assets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by NOVA or Member. You authorize NOVA and appoint NOVA your attorney in fact to sign your name to any financing statement used for the perfection of any security interest or lien granted hereunder. MM B. Reserve Account. i. Establishment. Upon the occurrence of a Reserve Event, you will establish and maintain a deposit account ("Reserve Account") at Member in the amount of the Reserve Amount. You authorize NOVA or Member to debit the Merchant Account to establish or maintain funds in the Reserve Account. a) Reserve Events. The following will constitute Reserve Events: (1) fraudulent activity in any monthly period that equal or exceeds 1 % of Merchant's average monthly volume over the preceding 12 month period, (2) chargebacks in any monthly period that equal or exceed 1% of the total dollar value of Sales Drafts, (3) NOVA's reasonable belief that you have accepted deposits but have not delivered the goods or services, (4) the commencement of bankruptcy, receivership, insolvency or similar action or proceeding initiated by or against you, and (5) termination of this Agreement for any reason. b) Reserve Amount. "Reserve Amount" means an amount equal to the aggregate dollar value of 7 months of chargebacks plus 2 months of refunds. c) Funding. Member and NOVA have the right to debit the .Merchant Account to establish or maintain funds in the Reserve Account. Member or NOVA may deposit into the Reserve Account funds they would otherwise be obligated to pay you, for the purpose of establishing or maintaining the Reserve Account in accordance with this Section, if they determine such action is reasonably necessary to protect their interests. ii. Authorizations. Member or NOVA may, without notice to you, apply deposits in the Reserve Account against any outstanding amounts you owe under this Agreement or any other agreement between you and Member or NOVA. Also, NOVA or Member may exercise their rights under this Section to collect any amounts due to Member or NOVA including, without limitation, rights of set-off and recoupment. iii. Funds. Funds in the Reserve Account will remain in the Reserve Account until 90 days following termination of Reserve Events (1) through (4), above. With regard to Reserve Event number (5), (termination), in no event will you be entitled to a return of Reserve Account funds before 270 days following the effective date of termination of this Agreement, provided, however, that you will remain liable to NOVA and Member for all liabilities occurring beyond such 270 day period. Member and NOVA will have sole control of the Reserve Account. iv. Assurance. In the event of a bankruptcy proceeding and the determination by the court that this Agreement is assumable under Bankruptcy Code § 365, as amended from time to time, you must establish or maintain a Reserve Account in an amount satisfactory to NOVA or Member. C. Recou meat and Set Off. Member and NOVA have the right of recoupment and set-off. This means that they may offset any outstanding/uncollected amounts owed to them from: (i) any amounts they would otherwise be obligated to deposit into the Merchant Account, and (ii) any other amounts NOVA or Member may owe you under this Agreement or any other agreement. D. 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 - 8 - NOVA under this Agreement, at law or in equity. Rather, each and every right of Member and NOVA at law or in equity will be cumulative and concurrent and in addition to every other right. 8. Fees and Other Amounts Owed. A. Fees. You will pay Member and NOVA fees for services, forms or equipment as set forth in the attached Exhibit A, Fees. Such fees will be calculated once each month for the previous month's activity, and may be netted out by NOVA from the funds due you under this Agreement. NOVA will send you an invoice reflecting such amount, which will be paid within 30 days. In addition, you will immediately pay NOVA or Member any amount incurred by NOVA or Member attributable to this Agreement, including but not limited to chargebacks, fines imposed by Visa or MasterCard, non -sufficient fund fees, and ACH debits that overdraw the Merchant Account, Reserve Account, or any other account you have at Member. B. Fee Amendments. The fees set forth in the attached Exhibit A, Fees will not be amended by NOVA for the Term of the Agreement except to pass through to you increases in interchange, assessments, or fees imposed by a third party. 9. Information, Indemnification, Limitation of Liability. A. Information. You must notify NOVA in writing of any changes to the information in the request for proposal, including but not limited to: any additional location or new business, type of goods and services provided, and how sales are completed (i.e., by telephone, mail, or in person at your place of business). The notice must be received by NOVA within 10 business days of the change. You will provide updated information to NOVA within a reasonable time upon request. You are liable to Member and NOVA for all losses and expenses incurred by Member or NOVA arising out of your failure to report changes to us. B. Hold Harmless. Among 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 between Merchant and any Cardholder relating to any Card transaction or any breach by Merchant of any of its obligations under this Agreement. To the extent permitted by and amounts provided for by law -Merchant hereby releases NOVA and Member from any and all liabilities, claims, losses, costs, expenses and demands of any kind or nature, arising out of or in connection with such Card transactions and Merchant breaches, except to the extent such liabilities, claims, losses, costs, expenses or demands arising from NOVA's or Member's negligence or willful misconduct. Nothing contained herein is intended nor shall be construed to waive the City's rights and immunities under the common law or Florida Statute s. 768.28 as amended from time to time. This provision may not be considered to increase or otherwise waive the limits of liability to third -party claimants established by Florida Statute s. 768.28. C. Limitation of Liability. The liability, if any, of NOVA or Member under this Agreement, whether to you or any other party, whatever the basis of the liability, will not exceed in the aggregate the difference between (i) the amount of fees NOVA received from you during the month in which the transaction out of which the liability arose accrued, and (ii) assessments, chargebacks, and offsets against such fees which arose during that month. If more than one month is involved, -9- the aggregate amount of NOVA and Member's liability will not exceed the lowest amount determined in accord with the previous sentence for any one month involved. In no event will NOVA, Member or their agents, officers, directors or employees be liable for indirect, special, or consequential damages. D. Performance. NOVA and Member will perform all services in accordance with this Agreement. NOVA makes no other warranty, express or implied, regarding the services, and nothing contained in the Agreement will constitute such a warranty. NOVA disclaims all implied warranties, including those of merchantability and fitness for a particular purpose. No party will be liable to the other parties for any failure or delay in its performance of this Agreement if such failure or delay arises out of causes beyond the control and without the fault or negligence of such party. 10. Representations and Warranties. You represent and warrant to NOVA and Member at the time of execution and during this term of this Agreement that: A) you have never been placed on the MasterCard MATCH system or the Combined Terminated Merchant rile; B) all transactions are bona fide, and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from you; and C) you will comply with the haws and Rules. 11. Audit and Financial Information. Merchant authorizes Member and NOVA to audit Merchant's records to confirm compliance with this Agreement. Merchant will provide Member and NOVA financial statements and other financial information as requested from time to time. 12. Third Parties. A. Services. You may be using special services or software provided by a third party to assist you in processing transactions, including authorizations and settlements, or accounting functions. You are responsible for ensuring compliance with the requirements of any third party in using their products. This includes making sure you have and comply with any software updates. NOVA has no responsibility for any transaction until that point in time NOVA receives data about the transaction. B. Use of Terminals Provided byOthers. You will notify NOVA immediately if you decide to use electronic authorization or data capture terminals or software provided by any entity other than NOVA or its authorized designee ("third party terminals") to process transactions. If you elect to use third party terminals, you agree (i) the third party providing the terminals will be your agent in the delivery of Card transactions to Member via Visa Net or a similar data processing system or network; and (ii) to assume full responsibility and liability for any failure of that third party to comply with the Rules or this Agreement. Neither 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 a malfunction in a third party terminal. 13. Term and Termination. A. Term. The Agreement will become effective on the date Member executes this Agreement ("Effective Date"). The Agreement will remain in effect for the period specified in your request for proposal ("Term") unless terminated as set forth below. B. Termination. i. Without Cause. The Agreement may be terminated by any party to be effective at the end of the Term by giving written notice of an intention not to renew at least 90 days before the end of the current term. ii. With Cause. The appropriate party may terminate this Agreement immediately upon the occurrence of an Event of Default, defined below. Notice of termination may be given orally or in writing, but if given orally will be confirmed in writing. Termination will be effective on the date specified by the notice. iii. Generally. NOVA and Member's rights of termination provided throughout this Agreement are cumulative. A specific right of termination enumerated in this Agreement will not limit any other right of NOVA or Member to terminate this Agreement expressed elsewhere in this Agreement. C. Events of Default. The following will constitute an Event of Default i. Excessive Event. The occurrence of Excessive Activity. ii. Mail or Telephone _Orders. Accepting mail or telephone orders or electronic commerce transactions without NOVA's prior written consent. iii. Non a meat. You do not pay NOVA or Member any amount you owe NOVA or Member. iv. Adverse Financial Condition. Your financial condition changes adversely. V. Garnishment. Your deposit accounts with Member, the Merchant Account, or any of your property in the possession of NOVA or Member is garnished or attached. vi. Asset Assignment. You assign your assets generally for the benefit of creditors. vii. Bankruptcy. You are insolvent as evidenced by your or our records, or a proceeding is commenced by or against you under any bankruptcy, insolvency or similar law seeking an order to adjudicate you bankrupt or insolvent or other relief with respect to you or your debts, or seek appointment of a receiver or similar official for you or for any substantial part of your assets. viii. Breach. A party fails to perform a material obligation of this Agreement, and such failure continues for a period of 30 days after the breaching party receives notice of the breach. ix. False Re resentation. 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. X. Third Party Action. Visa or MasterCard requires Member or NOVA to terminate this Agreement or cease processing transactions. D. Action upon an Event of Default. Upon the occurrence of an Event of Default, NOVA may take the following action: i. suspend processing privileges and terminate this Agreement, ii. create a Reserve Account, or iii. any other reasonable action deemed necessary by NOVA or Member to protect their interests. E. Action upon Termination. i. Terminated Merchant File. You acknowledge that Member and/or NOVA is required to report your business name to Visa and MasterCard when Merchant is terminated due to the reasons listed in the Rules. ii. Merchant Account. All your obligations regarding accepted Sales Drafts will survive termination. You must maintain in the Merchant Account and the Reserve Account enough finds to cover all chargebacks, deposit charges, refunds and fees incurred by you for a reasonable time. You authorize Member to charge those accounts, or any other account maintained under this Agreement, for all such amounts. If the amount in the Merchant Account and Reserve Account is not adequate, you will pay Member and NOVA the amount you owe them upon demand, together with all costs and expenses incurred to collect that amount, including reasonable attorneys' fees. iii. E uq ipm_ent. Within 14 business days of the date of termination, you must return all equipment owned by NOVA and immediately pay NOVA any amounts you owe it for equipment costs. 14. Compliance With Laws And Rules. You agree to comply with all rules and operating regulations issued from time to time by MasterCard and Visa and any policies and procedures provided by Member or NOVA, including those set forth in the Merchant Operating Guide ("Rules"), The Rules are incorporated into this Agreement by reference as if they were fully set forth in this Agreement. You further agree to comply with all applicable state, federal and local laws, rules and regulations ("Laws"), as amended from time to time affecting acceptance of the cards, processing of card transactions, and the transactions contemplated by this Agreement. 15. Use of Trademarks and Confidentiality. A. Use of Trademarks. Your use of Visa and MasterCard marks will fully comply with the Rules. Your use of Visa, MasterCard or other cards' promotional materials will not indicate, directly or indirectly, that Visa or MasterCard endorse any goods or services other than their own and you may not refer to Visa or MasterCard in stating eligibility for your products or services. B. Confidentiality. i. Cardholder Information. You will not disclose to any third party Cardholders' account information or other personal information except to an agent of yours assisting in completing a card transaction, or as required by law. You must keep all systems and media containing account, Cardholder or transaction information (physical or electronic, including but not limited to account numbers, card imprints, and TIDs) in a secure manner, to prevent access by or disclosure to anyone other than your authorized personnel. You must destroy in a manner that will render the data unreadable all such media that you no longer deem necessary or appropriate to store (except for Sales Drafts maintained in accordance with this Agreement, Laws, and the Rules). Further, you must take all _12 steps reasonably necessary to ensure Cardholder information is not disclosed or otherwise misused. ii. Prohibitions. You will not use for your own purposes, will not disclose to any third party, and will retain in strictest confidence all information and data belonging to or relating to the business of NOVA (including without limitation the terms of this Agreement), and will safeguard such information and data by using the same degree of care that you use to protect your own confidential information. C. Return to NOVA. All promotional materials, advertising displays, emblems, Sales Drafts, credit memoranda and other forms supplied to you and not purchased by you or consumed in use will remain the property of NOVA and will be immediately returned to NOVA upon termination of this Agreement. 16. General Provisions. A. Entire Agreement. This Agreement, including the Merchant Operating Guide and any amendment to this Agreement made in accordance with the procedures set forth in Section 16H. below, all of which are incorporated into this Agreement, constitutes the entire agreement between the parties, and all prior or other agreements or representations, written or oral, are merged in and superseded by this Agreement. If there is a discrepancy between the terms of this Agreement and your request for proposal, the terms of this Agreement will govern. B. Exclusivity. During the initial and any renewal term of this Agreement, you will not enter into an agreement with any other entity that provides credit card or debit card processing services similar to those provided by NOVA and Member as contemplated by this Agreement. C. Assignability. This 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 Member and NOVA. If you nevertheless assign this Agreement without NOVA's consent, the Agreement will be binding on the assignee. D. Notices. Any written notice under this Agreement will be deemed given upon the earlier of: (i) actual receipt or (ii) five days after being deposited in the United States mail, and addressed to the last address shown on the records of the sender. E. Bankruptcy. You will immediately notify Member and NOVA of any bankruptcy, receivership, insolvency or similar action or proceeding initiated by or against Merchant or any of its principals. You will include Member and NOVA on the list of creditors as filed with the Bankruptcy Court, whether or not a claim may exist at the time of filing, and failure to do so will be cause for immediate termination or any other action available to NOVA under applicable Rules or Law. You acknowledge that this 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. Attorne 's 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 - 13 - this Agreement, or in collecting any amounts due or resulting from any breach of this Agreement. G. Customer Contact. You authorize Member and NOVA to contact your customers if they determine that such contact is necessary to find out information about any Card transaction between you and the customer. H. Amendments. Member and NOVA may propose amendments or additions to this Agreement. Member or NOVA will inform you of a proposed change in a periodic statement or other written notice. You will be deemed to have agreed to the change if you continue to present transactions to Member and NOVA after 30 days following the mailing of the notice. Notwithstanding the previous sentence, changes to fees authorized by this Agreement will be effective upon notice to you, unless a later effective date is provided. Further, NOVA is entitled to pass through to you any fee increases imposed by Visa, MasterCard, or telecommunication vendors without giving you the right to terminate this Agreement. 1. Severabili and Waiver. if any provision of this Agreement is illegal, the invalidity of that provision will not affect any of the remaining provisions and this Agreement will be construed as if the illegal provision is not contained in the Agreement. Neither the failure nor delay by NOVA or Member to exercise, or partial exercise of, any right under this Agreement will operate as a waiver or estoppel of such right, nor shall it amend this Agreement. All waivers must be signed by NOVA. J. Independent Contractors. NOVA, Member and Merchant will be deemed independent contractors and none will be considered agent, joint venturer or partner of the other. K. Survival. All provisions that by their context are intended to survive termination of this Agreement will so survive. Witness: Marion Swenson; CMC City Clerk Date: :,Z )�y Y— p oved as to Form and /Leall S f ie Mitchell 9. K ity Attorney SEE CITY TAM C Jo S Treiber, Mayor r. Date: e- '" JA Jeffrey L. Miller, City Manager Date: NOVA Information Systems By: Name: Title: Date: Wachovia Bank, National Association Vk/a First Union National Bank By: Name: Title: Date: -l5 EXRMIT A SCHEDULE OF FEES CITY OF TAMARAC April 26, 2002 - Revision Retail Emerging Markets OualiCed Transaction Conditions- Rate 1.60% + $,25 per transaction (Visa: CPS Retail/ MasterCard: Merit III, Corporate Face to Face, International Electronic) Card is present, full magnetic stripe is read by the terminal and signature is obtained One electronic authorization request is made per transaction and transaction/purchase date is equal to the authorization date; authorization response data must be included in settled transaction Y Authorized transaction amount must match settled (deposit) transaction amount, except for restaurants, where transaction amount must be within 20% of original authorized amount Additional data (sales tax and customer code) is required in the settled transaction on all Commercial cards at non -Travel & Entertainment (T&E) locations (see Commercial Card section) Transaction must be authorized and settled under a standard retail industry code Y Transaction electronically deposited (batch transmitted) no later than 1 day from transaction/purchase date VISA Only Partially Qualifled Transaction Conditions - Rate 2.09% + $0.35 per transaction .49% + $0.10 surcharge on base rate) (Visa: CPS Retail 2 (Developing Markets) One or more of the Qualified conditions were not met, OR MasterCard Partially Qualified Transaction Conditions - Rate 2.47% + $0.35 per transaction .87% + $0.10 surchar a on base rate (MasterCard: Key Entered, Merit I, Electronic Commerce, Corporate Data Rates H & III, International Corporate Purchasing - Data Rate M One or more of the Qualified conditions were not met, OR Transactions electronically deposited (batch transmitted) greater than 1 day but within 2 days of transaction/purchase date (applies to MasterCard only) Page 2 Exhibit A / Schedule of fees City of Tamarac 04.26.02-Rev. Retail Pricing cont.: Non- ualiiied Transaction Conditions Rate 3.10% + $.35 per transaction —_ (1.50% + $0.10 surcharge on base rate) (Visa: EIRF, Standard, Commercial Electronic & Standard, Signature Electronic & Standard, Infinite Electronic & Standard/ MasterCard: Standard, International Standard, Corporate Data Rate I, Corporate T&E Rates I & 11, Corporate Standard, International Corporate, International Corporate Purchasing, World MasterCard) One or more of the Qualified or Partially Qualified conditions were not met, OR Transaction electronically deposited (batch transmitted) greater than 2 days from authorization date (applies to MasterCard only), OR Commercial card, World MasterCard, Visa Signature card accepted at a T&E location, OR Y Commercial card at a non-T&E location without the required additional data (see Commercial Card section), OR Visa Infinite card accepted, OR Transaction was not electronically authorized or authorization response data was not included in settled transaction, OR ➢ Transactions electronically deposited (batch transmitted) greater than 1 day but within 2 days of transaction/purchase date (applies to Visa only) Mail/Telephone Order - Internet --- Direct Marketing (card not present) Qualified Transaction Conditions- Rate 2.20% + $.25 per transaction (Visa: CPS Card Not Present / MasterCard: Merit 1, Electronic Commerce, Corporate Data Rates Ill & I11, International Corporate Purchasing — Data Rate II) Y One electronic authorization request is made per transaction and transaction date is equal to the shipping/authorization date; authorization response data must be included in settled transaction. Authorization request message must include Address Verification Service (AVS) Transaction / Shipping date must be within 7 calendar days of authorization date. Settled transaction amount must equal authorized amount. Settled transaction must include customer service telephone number, order number, and total authorized amount. Additional data (sales tax and customer code) is required in the settled transaction on all Commercial cards at non -Travel & Entertainment (T&E) locations (see Commercial Card section) Y Transaction electronically deposited (batch transmitted) on or 1 day after transaction/shipping date. Page 3 Exhibit A / Schedule of fees City of Tamarac 04.26.02.Rev. Mail/Telephone Order — Internet — Direct Marketing Pricing coat. Non- ualified Transaction Conditions - Rate 3.65% + $.35 per transaction 1.45% + $0.10 surchar eon base rate (Visa: EIRF, Standard, Commercial Electronic & Standard, Signature Electronic & Standard, Infinite Electronic & Standard/ MasterCard: Standard, International Standard, Corporate Data Rate I, Corporate T&E Rates I & 11, Corporate Standard, International Corporate, International Corporate Purchasing, World MasterCard) One or more of the Qualified conditions were not met, OR Transaction electronically deposited (batch transmitted) greater than 1 days from transaction/purchase authorization date (applies to MasterCard only), OR Commercial card, World MasterCard, Visa Signature card accepted at a T&E location, OR Commercial card at a non-T&E location without the required additional data (see Commercial Card section), OR Visa Infinite card accepted, OR Y Transaction was not electronically authorized or authorization response data was not included in settled transaction, OR Y Transactions electronically deposited (batch transmitted) greater than 1 day but within 2 days of transaction/purchase date (applies to Visa only) COMMERCIAL CARD ADDITIONAL DATA REQUIREMENTS Visa Purchasing cards - Sales Tax and Customer Code (supplied by cardholder at point of sale) Corporate and Business cards - Sales Tax (Sales Tax prompt must be enabled on all Visa transactions) MasterCard Corporate Data Rate II (Purchasing cards) - Sales Tax and Customer Code (supplied by cardholder at point of sale) Corporate Data Rate 11 (Business and Corporate cards) - Sales Tax Y International Corporate Purchasing Data Rate II - Sales Tax and Customer Code (supplied by cardholder at point of sale) Proposer's pricing is dependent upon interchange and other fees imposed on all credit card processors by Visa, MasterCard and other third parties. Proposer will pass through to the City all such increases imposed by third parties, upon written notice to the City of the increased fee. If the City continues to present Card transactions to Proposer after 30 days following the notice of such increase, the City of Tamarac will be deemed to have accepted such increased fees. Page 4 Exhibit A / Schedule of Fees City of Tamarac 04.26.02.Rev. NON-BANKCARD TRANSACTION PROCESSING NOVA will also support member non-bankcard acceptance, by providing authorization and data capture for the following card types for a $.15 authorization fee per transaction (assuming the City of Tamarac has established a merchant agreement with those card issuers): • American Express • Discover/Novus • Diners/Carte Blanche DEBIT CARD ACCEPTANCE It is customary for card issuers to provide debit cards that have the ability to access the consumer's checking account through a range of networks. This section addresses access through both the National Debit Networks such as Maestro and InterLink as well as the Regional Debit Networks such as Star/Honor and Plus. These transactions are characteristic of those associated with a Personal Identification Number (PIN) which is provided at the point -of -sale. There are several benefits associated with accepting debit as a form of payment. Compared with check acceptance, debit significantly reduces transaction time at the point -of sale; eliminates losses due to bad checks; transactions supported by a Pin Pad attached to the same equipment used for credit cards. Additionally, debit networks offer a competitive fee structure compared to other forms of payment. Transaction Costs: Regional Networks: $.55 per transaction National Networks: $.85 per transaction Please refer to Exhibit B, marked "Merchant Debit Card Processing Agreement" for terms and conditions relative to debit card acceptance. GENERAL MERCHANT SERVICE FEES: Initial set-up fee: Additional location set-up fee: Debit Card Network Activation Fee: Monthly Statement Fee: Network monthly minimum, if applicable: Voice Authorization per item: Voice Auth w/AVS per item: Referral Fee, if applicable: *NSF Fee, if applicable: *Maintenance Fee (DBA or DDA# change): *Chargeback Fee: *Equipment Swap Fee: *Research Fee: $125.00 $25.00 (per MID #) $25.00 (one time -per MID #) $ 5.00 (per MID #) $30.00 (per MID #) $0.65 Touchtone/$0.95 Operator $0.90 Touchtone/$2.20 Operator $4.00 (per occurrence) $20.00 (per occurrence) $20.00 (per occurrence) $20.00 (per occurrence) $40.00 Within first year, or $150.00 thereafter $25.00 per hr. or $5.00 per page *Fees will be directly debited to the City's merchant account via ACH. Page 5 Exhibit A / Schedule of Fees City of Tamarac 04.26.02.Rev. CLIENT RESPONSIBILITIES Any telephone lines or additional communication costs associated with electronic processing will be the responsibility of the City of Tamarac and the City's local carrier. Any fees associated with PCNAR customized programming will be the responsibility of the City. NOVA does not assume these costs. EQUIPMENT/SOFTWARE OPTIONS NOVA can offer electronic draft capture equipment and/or PC software for your point -of -sale transactions to support both credit and debit cards. Available options are outlined below with the pricing listed on a per unit basis. Model: Lease: Purchase: Verifone Omni 3200 $31.99 + tax $ 790.00 (Combined Tenninal/Printer) Verifone Omni w/pin pad $36.99 + tax $ 940.00 Hypercom ICE 5550 $34.99 + tax $ 860.00 (Combined Term inal/Printer/ integrated pin pad) PC Transact It Windows $27.99 + tax $ 499.00 ACS Software costs: Purchase $ 499.00 Daily Detail $ 9.95 monthly Retrievals/Chargebacks $ 9.95 monthly, if applicable • Monthly lease fees will be directly debited to the City's merchant account via ACH by Ladco Leasing • Lease option is Non -Cancelable and payment plan on the lease option are 48 months with buyout option(s) available at the end of the lease. • Tax will be added to above lease pricing, if applicable. (See NOVA Exhibit C, for Ladco Equipment Lease terms.). E-Commerce Solutions and Methods • Pricing is dependent upon each vendor's product solution. Specific pricing for NOVA proprietary products can be provided upon request. Page 6 Exhibit A / Schedule of Fees City of Tamarac 04.26.02.Rev. SUPPLIES Supplies are at the merchant's expense and are ordered directly through NOVA's 1/800#, for 24 hour Relationship Support. NOVA has selected Moore Business Forms, to fulfill supply requests. All supplies are shipped and billed directly by Moore Business Forms. Listed below is a sample of supplies typically ordered by merchants. If the City orders other supplies, fees charged by NOVA's vendor, will be passed on to the City. In addition, NOVA's supply vendor may increase its fees, in which case, Proposer will pass through to the City all such increases imposed by third parties upon written notice to the City of the increased fee. Sample of Supply Costs: Manual Imprinter/Supplies: Imprinter/Each Sales Drafts (apt) Verifone Omni 3200: Thermal Paper/sold per roll: Hypercom Ice 5500: Thermal Paper/sold per roll: Verifone Printer 250: Ribbon: $3.25 each Paper/Carton of 20 rolls: $16.30 $40.00 $ 1.67 (per 100 count) $ 0.85 $ 0.77 Prices do not include tax or freight Additional $3.75 handling fee per order All supply charges will be directly debited to the City's merchant account via ACH, by NOVA's vendor.