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HomeMy WebLinkAboutCity of Tamarac Resolution R-2020-122Temp. Reso. 13533 December 9, 2020 Page 1 of 5 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2020- /a";1- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, APPROVING AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AMENDMENT 3 TO THE SOFTWARE LICENSE AND SERVICES AGREEMENT WITH CENTRAL SQUARE TECHNOLOGIES PROVIDING FOR "CENTRALSQUARE PAYMENTS" PAYMENT PROCESSING SERVICES, - AUTHORIZING EXECUTION OF ASSOCIATED CONTRACT DOCUMENTS; AUTHORIZING BUDGET AMENDMENTS FOR PROPER ACCOUNTING PURPOSES; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on June 28, 2017, The City Commission approved a Software License and Services Agreement with Central Square Technologies (formerly Superion), for the implementation of their ONESolution enterprise application software suite; and WHEREAS, on September 10, 2018, the City Commission approved Amendment 1 to the Software License and Services Agreement to make minor corrections reflecting the intended correct language; and WHEREAS, on December 9, 2020, a proposed Amendment 2 to the Software License and Services Agreement to make minor contract language corrections reflecting a recent work management software change, was submitted to the City Commission for their review and approval; and Temp. Reso. 13533 December 9, 2020 Page 2 of 5 WHEREAS, the project is currently underway and planned for completion by April 2021, and WHEREAS, in January 2020, the City received notice of Central Square Technologies' intent to discontinue use of their Payment Gateway service — Transaction Manager — and advised customers to migrate to their new "CentralSquare Payments" service; and WHEREAS, the City is also required to utilize the "CentralSquare Payments" service for payment processing in the ONESolution enterprise application software suite; and WHEREAS, the proposed Amendment 3, attached hereto as Exhibits 4, 5 and 6, provide for an initial three (3) year term, with automatic one (1) year renewals thereafter; and WHEREAS, it is the recommendation of the Director of Information Technology, the Director of Financial Services and the Purchasing/Contracts Manager that the City execute Amendment 3, a payment processing agreement with Central Square Technologies for their "CentralSquare Payments" service, attached hereto as Exhibits 4, 5 and 6; and WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interests of the citizens and residents of the City of Tamarac to approve and to �, Temp. Reso. 13533 December 9, 2020 Page 3 of 5 authorize the appropriate City Officials to execute Amendment 3 to Software License and Services Agreement with Central Square Technologies to provide their "CentralSquare Payments" service. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA THAT: 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. All exhibits attached hereto are incorporated herein and made a specific part hereof. SECTION 2: Amendment 3 to the Software License and Services Agreement with Central Square Technologies to provide their "CentralSquare Payments" service is hereby approved, and the appropriate City Officials are hereby authorized to execute Amendment 3, including all required contract documents. SECTION 3: Funding is available for the provision of the Central Square Technologies' "CentralSquare Payments" service from the appropriate accounts. SECTION 4: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. Temp. Reso. 13533 December 9, 2020 Page 4 of 5 SECTION 5: 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 6: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this c'I'YA day of 2020. CITY OF TAMARAC, FLORIDA Mich Ale J. Gomez, M R ATTEST: J ER JOH ON CITY CLERK Temp. Reso. 13533 December 9, 2020 Page 5 of 5 RECORD OF COMMISSION VOTE: MAYOR GOMEZ LA(�s_ DIST 1: V/M BOLTON �j_5 DIST 2: COMM. GEUN DIST 3: COMM. VILLALOBOS _065 OVn DIST 4: COMM. PLACKO I HEREBY CERTIFY THAT I HAVE APPROVED THIS RESOLUTION AS TO FORM: A, wr, SAMUEL S. GORE CITY ATTORNEY Z/ CY' T Terms and Conditions for Payment Processing CentralSquare Payments is a registered MSP/ISO of Paya, Inc. and BMO Harris Bank N.A. Services purchased from Centra/Square Payments are provided by Paya and BMO Harris Bank. The Terns and Conditions below are pass -through terms from Paya, Inc. and BMO Hams Bank N.A. which are non-negotiable. Paya Bankcard These are the Terms and Conditions applicable to Organization services ("Agreement") by and between Paya, Inc. ("Paya"), BMO Harris N.A. ("Bank"), and the organization ("Organization", or "Customer") who has executed the Agreement. ARTICLE I — ADDITIONAL DEFINITIONS "Account" means a bank account maintained by Organization as set forth in Section 6.10 for the crediting of collected funds and the debiting of fees and charges pursuant to this Agreement. "ACH" means the Automated Clearing House paperless entry system operated by the Federal Reserve. "Agreement' means the Payment Acceptance Application and these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents indicated herein, as amended from time to time, all of which constitute theAgreement. "American Express" means American Express Travel Related Services Company, Inc. "American Express Organization Operating Guide" means the rules and regulations available at www.americanexpress.com/merchantopguide (or any successor or replacement website), as they may be amended from time to time by American Express. "Application" means the initial disclosure of organization's information used to underwrite and approve applicant for payment acceptance services "Authorization" means a computerized function or a direct phone call to a designated number to obtain credit approval for individual Transactions from the Card Issuer. "Card" means any account or evidence of an account issued to a Cardholder under license from a Payment Brand, any or representative or member of a Payment Brand, that Organization accepts as payment from Cardholders for goods or services. Cards include, but are not limited to, credit and debit/check cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, paper certificates, and credit accounts and any other payment instrument with an embedded microcomputer EMV chip. "Cardholder" (also referred to as "Card Member" in some Payment Brand materials) means the person whose name is embossed upon the face of the Card and who purports to be the person in whose name the Card is issued. "Card Issuer" means the financial institution or company, which has provided a Card to the Cardholder. "Chargeback" means the procedure by which, and the value of, a Sales Draft (or disputed portion thereof) returned to Bank by a Card Issuer. "Credit Voucher" means a document executed by a Organization evidencing any refund or price adjustment relating to Cards to be credited to a Cardholder account. "Debit Card" means a plastic card used to initiate a debit Transaction, used primarily to purchase goods or services and obtain cash, for which the Cardholder's bank account is debited by the issuer. "Discount Fee" means a fee charged on all Transactions that is payable by Organization to Paya for processing Organization's Transactions. "Discover" means DFS Services, LLC. "EMV" means Europay, Mastercard and Visa. "Imprint" means: (i) an impression on a Sales Draft manually obtained from a Card through the use of an imprinter, or (ii) the electronic equivalent obtained by swiping a Card through a terminal and electronically printing a Sales Draft. "Mastercard" means Mastercard International Incorporated. "Payment Brand" means any payment method accepted by Paya for processing, including, without limitation, Visa, Mastercard, Discover, American Express and other credit and debit card providers, debit network providers, gift card, and other stored value and loyalty program providers. "PCI DSS" means the Payment Card Industry Data Security Standards available at http://www.pcisecuritystandards.org, as amended from time to time. "Reserve Account' has the meaning set forth in Section 6.06. "Rules" means the rules, regulations, and other requirements of any Payment Brand or related authority, including, without limitation, those of the PCI Security Standards Council, LLC and the National Automated Clearing House Association, as amended from time to time. "Rules" includes without limitation the Visa USA, Inc. Operating Regulations, Visa International Operating Regulations, Mastercard Rules, Discover Operating Regulations, and the American Express Organization Operating Guide. Capitalized terms not defined herein shall have the meanings set forth in the Rules. ,i ttn, YLeg�l<. L' R1\ - Oil I''(,'i ��.-0501640} PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. "Sales Draft" means the paper form approved in advance by Paya, whether such form is electronically or manually imprinted, evidencing a sale Transaction. "Transaction" means any retail sale of goods or services, or credit for such, from Organization for which the customer makes payment through the use of any Card and which is presented to Bank for collection. "Visa" means Visa Inc. "Voice Authorization" means a direct phone call to a designated number to obtain credit approval on a Transaction. ARTICLE H - ORGANIZATION REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS a.oi Honoring Cards. (a) Organization will accept, without discrimination, all valid Cards properly presented for payment for bona fide, legitimate business transactions arising out of Organization's usual trade or business and for Transactions originated by Organization; (b) U.S. retailers may require a minimum purchase amount on credit card transactions. The minimum purchase amount must not exceed $10.00 (ten dollars) and does not apply to transactions made with a Debit Card. Maximum transactions amounts may be established by Federal agencies and institutions of higher learning; (c) Organization shall not require any Cardholder to pay any part of any fee imposed upon Organization by this Agreement, whether through any increase in price or otherwise require a customer presenting a Card to pay any charge as a condition of sale that is not also required from a customer paying cash. However, Organization may offer discounts to customers for cash purchases. Organization may also charge a service fee on Transactions if Organization charges a service fee: (i) for all payment methods (check, credit card, etc.) or (ii) for a specific payment mode (telephone) and not for other payment modes (face-to- face); (d) Organization shall not accept a Card as payment (other than to the extent permitted by this Agreement), if the person seeking to use the Card does not present the Card to permit Organization to examine it and obtain an Imprint or otherwise use the physical Card to complete the Transaction. Organization shall not deposit any Transaction for the purpose of obtaining or providing a cash advance either on Organization's Card or the Card of any other party. Organization agrees that any such deposit shall be grounds for immediate termination. Organization shall not obtain under any circumstance Authorization for, nor process a sale on, any Card that Organization is authorized to use. Processing Organization's own Card is grounds for immediate termination. s.oa Card Acceptance. When accepting a Card for a face-to-face Transaction, Organization will follow the steps provided by Bank and Paya, and will: (a) Examine the Card for the Cardholder's signature and if the Card is not signed, request identification to confirm that the Cardholder is the person he/she purports to be and determine in good faith and to the best of its ability that the Card is valid on its face; (b) Check the effective date (if any) and the expiration date of the Card, examine any card security features (such as a hologram) included on the Card; and (c) Obtain Authorization before completing any Transaction (where Authorization is obtained, Organization will be deemed to warrant the true identity of the customer as the Cardholder); (d) Unless the Sales Draft is electronically generated or is the result of an Internet, mail, telephone or preauthorized order, obtain an Imprint of the Card; (e) Enter a description of the goods or services sold and the price thereof (including any applicable taxes); (f) As required by the Rules, obtain the Cardholder's signature on the Sales Draft and compare that signature to the signature on the Card; (g) Deliver a true and completed copy of the Sales Draft to the Cardholder at the time of delivery of the goods or performance of the services, or if the Sales Draft is prepared by a point -of -sale terminal, at the time of the sale; (h) Provide the Sales Draft to the Cardholder following the purchase; and (i) Legibly reproduce the Cardholder's name, account number, expiration date, and the Organization's name and place of business if that information is not legibly imprinted on the Sales Draft. In addition, for Mastercard Transactions, Organization will legibly reproduce the name of the Card Issuer as it appears on the face of the Card. Each Sales Draft presented to Bank for collection shall be genuine and will not be the result of any fraudulent Transaction or telemarketing sale and shall not be deposited on behalf of any business other than Organization. a.os Authorization. (a) Organization will obtain a prior Authorization for all Card sales. If Organization cannot, for any reason, obtain an electronic Authorization, Organization will request a Voice Authorization from the designated authorization center, and will legibly print the authorization number on the Sales Draft; (b) Organization will not obtain or attempt to obtain Authorization unless Organization intends to submit a Transaction for the authorized amount; (c) Organization will not divide a single Transaction between two or more Sales Drafts or two or more Cards; (d) Organization will not attempt to obtain Authorization on an expired Card; (e) Organization acknowledges that an Authorization provides only that the Cardholder account has sufficient credit available to cover the amount of the current sale, that an Authorization is not a guarantee of payment, and that an Authorization will not waive any provision of this Agreement or otherwise validate a fraudulent Transaction or a Transaction involving the use of an expired Card. Receiving an Authorization shall not relieve the Organization of liability for Chargeback on any Transaction; (f) Transactions will be deemed invalid on Cards that are expired, whether or not an Authorization has been obtained; (g) If Authorization is granted, Organization shall print the Authorization number, or ensure that it appears legibly in the appropriate location on the Sales Draft; and (h) If Authorization is denied, Organization shall not complete the Transaction and shall follow any instructions from the authorization center; (i) Organization shall not obtain or attempt to obtain Authorization for a Transaction that it knows or should have known to be either fraudulent or not authorized by the Cardholder. 9.o4 Retention and Retrieval of Cards. (a) Organization shall use its best efforts, by reasonable and peaceful means, to retain or recover a Card upon receiving such instructions when making a request for Authorization or if Organization has reasonable grounds to believe that the Card is counterfeit, fraudulent or stolen; (b) The obligation of Organization imposed by this Section to retain or recover a Card does not authorize a breach of the peace or any injury to persons or property and Organization will hold Bank and Paya harmless from any claim arising from any injury to person or property, or other breach of the peace in connection with the retention or recovery of a Card. s.os compuance witn Law; vavment tiara moustry uata oecuniv auanuarus nvn-LJM IL�ulG auu . LVWaUa Transaction Information Reguirements. (a) Organization confirms that it is, and shall be, in full compliance during the term of this Agreement with all laws, statutes and federal and/or state regulations, as well as the Rules as may be applicable to Organization, its business and any Transaction (b) Internet Organizations shall, at a minimum, include the following information and processes on their Internet sites, (i) prominent display of Organization's name as "organization" and as the name that will appear on the Cardholder statement, (ii) a complete description of goods or services offered; (iii) delivery standards including method and time for delivery; (iv) W110 004" sr€:S kt w* REV 031 12020 .,1,,,,..., —,;,-osoisao} PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. terms and conditions of purchase, and export or legal descriptions; (v) return/refund policy described in reasonable detail, (vi) opportunity to view and confirm order before order submission, (vii) secure method for payment data transmission, (viii) currency of transaction provided (USD); (ix) disclosure of Organization's outlets to country of origin; (x) display of card association or payment network logos; (xi) clear disclosure of Organization's privacy policy; (xii) alternate Organization contact info options; and (xiii) display of web hosting company contact information; (c) Organization hereby certifies that it (and any outside agent or contractor that it may utilize to submit Transactions to Paya) complies and will comply with the PCI DSS and Organization hereby agrees to pay any fines and penalties that may be assessed by a Payment Brand as a result of Organization's noncompliance with the requirements of PCI DSS), any data breaches, or by its failure to accurately validate its compliance. Organization will review and monitor the PCI DSS and other related Rules in order to determine the timeframes and mandates for compliance under PCI DSS. The foregoing is an ongoing obligation during the term of this Agreement and as this Agreement may be renewed. Organization acknowledges and understands that Organization may be prohibited from participating in Payment Brand programs if it is determined that Organization is non -compliant. The following lists certain (but not all) of the current PCI DSS requirements, all of which Organization shall comply with, if applicable: (i) install and maintain a working network firewall to protect data accessible via the Internet, (ii) keep security patches up-to-date, (iii) encrypt stored data, (iv) encrypt data sent across networks; (v) use and regularly update anti -virus software; (vi) restrict access to data to business "need to know;" (vii) assign a unique ID to each person with computer access to data; (viii) do not use vendor supplied defaults for system passwords and other security parameters; (ix) track access data by unique ID; (x) maintain a policy that addresses information security for employees and contractors; and (xi) restrict physical access to Cardholder information. Organization shall notify Paya if it utilizes any third party that provides payment related services, directly or indirectly and/or stores transmits, or processes Cardholder data and Organization is responsible ensuring compliance of any such third parties with PCI DSS. (d) To the extent Organization is required under the Rules, or Organization otherwise elects, to utilize EMV chip -capable terminals, all EMV chip- capable terminals used by Organization must appear on the EMV co -approved terminal list maintained by the Payment Brands. (e) In the event of the failure, including bankruptcy, insolvency, or other suspension of Organization's business operations, Organization shall not sell, transfer, or disclose any materials that contain Cardholder account numbers, personal information, or other Transaction information to third parties. Organization and/or its agent shall either return this information to Paya or provide Paya with acceptable proof of destruction of this information. (0 If Organization is undergoing a forensic investigation regarding PCI DSS compliance at the time Organization executes this Agreement, then Organization shall fully cooperate with the investigation until completed. Paya warrants that it complies with the applicable required PCI DSS regulations and that Paya is a PCI DSS Validated Service Provider. 9..o6 Retunis and Adjustments. (a) Organization's policy for the exchange or return of goods sold and the adjustment for services rendered shall be established and posted in accordance with the Rules. If applicable, Organization agrees to disclose to a Cardholder before a Card sale is made, that if merchandise is returned: (i) no refund, or less than a full refund, will be given; (ii) returned merchandise will only be exchanged for similar merchandise and of comparable value; (iii) only a credit toward purchases will be given; or (iv) special conditions or circumstances apply to the sale (e.g., late delivery, charges, or other noncredit terms), (b) Such disclosures must be made on all copies of Sales Drafts in letters approximately X inches high in close proximity to the space provided for the Cardholder's signature on the Sales Draft and issued at the time of sale; (c) If Organization does not make these disclosures, a full refund in the form of a credit to the Cardholder's Card account must be given. Organization shall not refund cash to a Cardholder who paid for the item by Card; (d) Credits must be made to the same Card account number on which the original sale Transaction was processed. 9.07 Organization's Business. (a) Organization will immediately notify Paya, with a copy to Bank, of any bankruptcy, receivership, insolvency or similar action initiated by or against Organization or any of its principals. Organization will include Bank and Paya on the list of creditors filed with the Bankruptcy Court, whether or not a claim exists at the time of filing, (b) Organization must notify Paya, with a copy to Bank, in writing of any changes to the information in the Application, including but not limited to: a change to Organization's financial condition (within 3 days), any additional location or new business, the identity of principals and/or owners, the form of business organization, type of goods and services provided, and the manner in which sales are completed. Organization must also notify Paya in writing, with a copy to Bank, if Organization sells or closes its business. Except for a change to the financial condition, Paya and Bank must receive all such notices 7 days prior to the change and otherwise upon request from Paya. Organization is liable to Paya and Bank for all losses and expenses incurred by Paya and Bank arising out of Organization's failure to report changes. Paya and Bank may immediately terminate this Agreement upon a change to the information in the Application, whether Paya and Bank independently discover such change or whether Organization notifies Paya and Bank of such change. Q.os Advertising. (a) Organization will prominently display the promotional materials provided by Bank and Paya in its place(s) of business. Use of promotional materials and use of any trade name, trademark, service mark or logotype ("Marks") associated with Card(s) shall be limited to informing the public that Card(s) will be accepted at Organization's place(s) of business. Organization's use of promotional materials and Marks is subject to the direction of Bank and Paya and must be utilized in accordance with the Rules; (b) Organization may use promotional materials and Marks during the term of this Agreement and shall immediately cease use and return any inventory to Bank or Paya upon any termination thereof; (c) Organization shall not use any promotional materials or Marks associated with any Payment Brand in any way which implies that the Payment Brand endorses any goods or services other than Card services and Organization shall not refer to any Payment Brand in stating eligibility for Organization's products or services. Organization's rights to use the Marks shall terminate with termination of this Agreement and Organization will cease all use of the Marks upon notification by the applicable Card association to discontinue use. Organization shall be fully liable to Bank and/or Paya for any and all loss, cost and expenses suffered or incurred by Bank and/or Paya, arising out of failure to return or destroy such materials following termination or Organization's misuse of the Marks. If Organization is a "Direct Mail Cardholder Solicitation Organization," then Organization acknowledges that the trademark 'Mastercard' and the corresponding logotype are the property of Mastercard International Incorporated (herein, "the Corporation"). Organization shall not infringe upon the mark or logo, nor otherwise use the mark or logo in such a manner as to create the impression that Organization's products or services are sponsored, produced, affiliated with, offered, or sold by this Corporation. Organization shall not use the mark or logo on its stationery, letterhead, envelopes, or the like nor in its solicitation; provided, however, that Organization may use one of the mark or logo in close proximity to the payment or enrollment space in the solicitation in a size not to exceed 1 1/4 inches in horizontal length if a logo is employed, or, if a mark is used, in type not to exceed the size of the type used in the major portion of the text on the same page, provided further that the legend, 'Accepted for Payment' must accompany the mark or logo used and must be the equivalent size of the mark or logo. In no case, however, shall Organization use any of the logo on the front or first page of its solicitation. One truthful statement that Organization is directing or limiting its offer to Mastercard cardholders v-.-0501640} IZL\"!131 I1_()2iJ PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. may appear in the body of the solicitation, other than in close proximity to the payment or enrollment space, subject to the limitation that: (i). only the word mark may be used; (ii) the word mark may not (1) exceed in type size the size of any other type on the same page, (2) differ in color from the type used in the text (as differentiated from the titles) on the same page, (3) be as large or as prominent as the name of Organization, (4) be the first item appearing on any page, nor (5) in any other way be the most prominent element of the page; (iii) Organization's name and/or logo must appear prominently on the same page as the mark; and (iv) the following disclaimer must appear in close proximity to the mark on the same page and in an equal size and type of print: 'Mastercard International Incorporated is not affiliated in any way with Organization and has not endorsed or sponsored this offer.' Organization further agrees to submit its first direct mail solicitation(s), prior to mailing, to the Mastercard Law Department, to be reviewed only for compliance with this Corporation's trademark rules and shall furthermore not distribute in any manner such solicitations until Organization shall have obtained the Corporation's written approval of the manner in which it uses Mastercard mark and logo on such solicitations. Organization shall likewise, upon request, submit to the Corporation any amended solicitations prior to mailing. Q.og Representations and Warranties of Organization. Organization represents and warrants to Bank and Paya at the time of execution and during the term of this Agreement that: (a) All information contained in the Application or any other documents delivered to Bank and/or Paya in connection therewith is true and complete and properly reflects Organization's business, financial condition and principal partners, owners or officers; (b) Organization has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and does not and will not violate any provisions of federal or state law or regulation, or conflict with any other agreement to which Organization is subject; (c) Organization has all licenses, if any, required to conduct its business and is qualified to do business in every jurisdiction where it is required to do so; (d) There is no action, suit or proceeding now pending or to Organization's knowledge, threatened by or against or affecting Organization which would substantially impair its right to carry on its business as now conducted or adversely affect its financial condition or operations; (e) Organization has performed and will perform all of its obligations to the Cardholder in connection with the Transaction evidenced by each Sales Draft; (f) With respect to all Transactions that Organization requests Paya and Bank to originate, Organization continuously represents and warrants to Bank and Paya that: (i) Each Cardholder has authorized the debiting and/or crediting of its account; (ii) Each entry is for an amount the Cardholder has agreed to; and (III) Each entry is in all other respects properly authorized; and (h) Organization will not sell, purchase, provide or exchange any Cardholder's account name or number information in any form to any third party except to Bank or to Paya or pursuant to written government request, and then only upon prior notice to Paya given in sufficient time to permit Paya to file a protective motion. ARTICLE IN - PRESENTMENT, PAYMENT, CHARGERACK, RESERVE ACCOUNTS; TYPES OF TRANSACTIONS s.oi Acceptance. Bank and Paya shall accept from Organization all valid Sales Drafts deposited by Organization and shall present the same to the appropriate Card Issuers for collection against Cardholder accounts. All presentment and assignment of Sales Drafts, collection therefore and re -assignment or rejection of such Sales Drafts are subject to the terms of this Agreement and the Rules. Bank shall only provisionally credit the value of collected Sales Drafts to the Account and reserves the right to adjust amounts collected to reflect the value of Chargebacks, fees, penalties, late submission charges and items for which Bank did not receive final payment. Settlement of funds will be in United States Dollars. Bank and Paya 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; (b) the Cardholder disputes his liability to Bank for any reason, including but not limited to those Chargeback rights enumerated in the Rules; or (c) the Transaction giving rise to the Sales Draft was not directly between Organization and the Cardholder. Bank will offset from payments due to Organization, any amount previously credited to Organization for a Sales Draft not accepted or later revoked by Bank and Paya. Organization shall regularly and promptly review all statements of account, banking statements, and other communications sent to Organization and shall immediately notify Paya if any discrepancy exists between Organization's records and those provided by Paya, the Organization's bank, or with respect to any transfer that Organization believes was not authorized by Organization or Cardholder. If Organization fails to notify Paya in writing within fourteen (14) calendar days after the date that Paya mails or otherwise provides a statement of account or other report of activity to Organization, Organization will be solely responsible for all losses or other costs associated with any erroneous or unauthorized transfer. The foregoing does not limit in any way Organization's liability for any breach of this Agreement. s.o.e Endorsement. The presentment of Sales Drafts for collection and payment is Organization's agreement to sell and assign its right, title and interest in each Sales Draft completed in conformity with Bank's and Paya's acceptance procedures, and shall constitute an endorsement by Organization to Bank of such Sales Drafts. Organization hereby authorizes Bank to supply such endorsement on Organization's behalf. Organization agrees that this Agreement is a contract of financial accommodation within the meaning of the Bankruptcy Code, 11 U.S.C. Sec. 365, as amended from time to time. Organization acknowledges that its obligation to Bank and Paya for all amounts owed under this Agreement arise out of the same transaction as Bank's obligation to deposit funds to the Account. s.os Transmission Method. If Organization utilizes electronic authorization and/or data capture services, Organization 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 Organization provides its own electronic terminal or similar device, such terminals must meet Paya's and Bank's requirements for processing Transactions. Information regarding a sales or credit Transaction transmitted with a computer or magnetic stripe reading terminal will be transmitted by Organization to Paya or its agent(s) in the form Paya from time to time specifies, or as required under the Rules. If Bank and Paya request a copy of a Sales Draft, credit voucher or other Transaction evidence, Organization will provide it within 3 business days following the request. The means of transmission indicated in the Application shall be the exclusive means utilized by Organization until Organization has provided Paya with at least 30 days prior written notice, with a copy to Bank, of Organization's intention to change the means of such delivery or otherwise to alter in any material respect Organization's medium of transmission of data to Paya. 3.04 Chargebacks. (a) Simultaneously with each Cardholder Transaction, a contingent and unmatured claim for Chargeback accrues against Organization in favor of Paya and Bank if under the Rules, Paya or Bank is required, or has the right, to pay to any Payment Wlv- 10 r6er Kot* REV 0311/020 1...... " I �, , 0501640} PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. Brand any fees, discounts, customer credits and adjustments, charges, fines, assessments, penalties or other items which may be charged back to Organization by Paya and Bank. Organization agrees that it is fully liable to Bank and Paya for all Chargebacks, and that Bank and Paya are authorized to offset from incoming Transactions and to debit via ACH the Account, the Reserve Account, or any other account held at any other financial institution in the amount of any Chargeback. Organization agrees to accept for Chargeback any sale for which the Cardholder disputes the validity of the sale according to the Rules; or Paya and Bank determine that Organization has in any way failed to comply with the Rules, this Agreement or Paya's procedures, including but not limited to the following: (i) The Sales Draft is illegible, not signed by the Cardholder or has not been presented to Bank within the required time -frames; (ii) The Sales Draft does not contain the Imprint of a valid, un-expired Card; (iii) A valid Authorization number has not been correctly and legibly recorded on the Sales Draft; (iv) The Sales Draft is a duplicate of a prior Transaction or is the result of two or more Transactions generated on one Card for a single sale; (v) The Cardholder alleges that he or she did not participate in the sale, authorize the use of the Card, receive goods or services purchased, or receive a required credit adjustment, or disputes the quality of the goods or services purchased, (vi) The price of goods or services on the Sales Draft differs from the amount which Organization presents for payment; (vii) The Transaction results from an Internet, mail, phone or preauthorized order and the Cardholder disputes entering into or authorizing the Transaction or the Transaction has been made on an expired or non -existing account number; (viii) Paya and Bank believe, within their sole discretion, that Organization has violated any provision of this Agreement, (ix) Paya determines that the Transaction record is fraudulent or that the Transaction is not bona fide or is subject to any claim of illegality, cancellation, rescission, avoidance or offset for any reason whatsoever, including without limitation negligence, fraud or dishonesty on the part of Organization or Organization's agents or employees, (x) Organization fails to provide a Sales Draft or legible copy thereof to Bank and Paya in accordance with this Agreement. (b) Organization acknowledges that Paya and Bank shall have full recourse to charge back the amount of a Card sale for which the Cardholder disputes that he/she did not authorize the charge if (i) the Imprint of the Card or (ii) the signature of the Cardholder was not obtained by Organization; and (iii) Organization shall not initiate a Transaction in an attempt to collect a Chargeback. Organization shall be liable for all fees arising out of the Chargeback dispute processes under the Rules. s.o5 Processing Limits. Organization's "Approved Monthly Volume" for sales drafts is that monthly volume set forth in the Application or as otherwise set forth in the Organization account approval letter from Paya to Organization or as may be later changed by Paya from time to time upon notice to Organization. If Organization exceeds the Approved Monthly Volume, either in the aggregate or with respect to any "method of sale": (i) Paya and Bank may suspend processing, hold the funds over the Approved Monthly Volume, and/or return all Sales Drafts evidencing funds over the Approved Monthly Volume to Organization; and (ii) Organization is subject to a 5% fee on all monies processed over the Approved Monthly Volume. s.os Additional Requirements for Acceptance of Debit Cards. Organization may honor at the locations set forth on the Application debit cards ("Debit Card") serviced by the electronic funds transfer networks in connection with the sales ("Debit Card Sale") of merchandise or services to the holders of such Debit Cards ("Debit Cardholders"). Bank and/or Paya agree to accept from Organization via electronic transmission documents evidencing such Debit Card Sales ("Sales Transmittal") and Adjustment Drafts (as defined below). (a) Compliance; Authorization; Other Requirements. Organization agrees to comply (and assume all liability for failure to comply) with the Rules of the Debit Card networks ("Networks") as amended from time to time. Any Authorization must be obtained immediately for every Debit Card Sale as directed by Bank and/or Paya ("Authorization"). When Authorization is obtained, Organization will electronically print the authorization number on the Sales Transmittal. Organization agrees that: (i) for each Debit Card Sale, the Debit Cardholder must enter his Personal Identification Number ("PIN") through a PIN pad located at the point of sale ("POS"), (ii) each PIN pad will be situated to permit Debit Cardholders to input their PINs without revealing them to other persons, including Organization's personnel; (iii) Organization will instruct personnel (a) that they may not ask any Debit Cardholder to disclose the PIN and (b) in the event that any of Organization's personnel nevertheless becomes aware of any Debit Cardholder's PIN, such personnel will not use such PIN or create or maintain any record of such PIN, and will not disclose such PIN to any other person; (iv) the PI N message must be encrypted from the PIN pad to the POS terminal and from the POS terminal to the Network and back so that the PIN message will not be in the clear at any point in the Transaction; (v) Organization will comply with any other requirements relating to PIN security as required by Bank or by any Network; (vi) for each Debit Card Sale a Transaction receipt in conformity with Regulation E of the Board of Governors of the Federal Reserve System will be made available to the Debit Cardholder; (vii) Organization may not collect tax as a separate cash transaction; and (viii) POS terminals, including hardware and software, must be certified for use by Bank and by all of the Networks. POS terminals must include encrypted PIN pads which allow entry of up to sixteen character PINS, printers and a keyboard lock function. Organizations are responsible for compliance with all Rules regarding the use of POS terminals, regardless of whether such POS terminals are obtained through Bank or through Paya. Organization will promptly initiate a refund to the customer (which may be made in cash, by an Adjustment Draft or with a check or cashier's check, as permitted by the Rules) whenever Organization determines that a Debit Card Sale should be canceled or reversed. Organization will cooperate with Bank and Paya, to resolve any alleged errors relating to Debit Card Sales. Organization will maintain adequate records to assist in error resolution; records will be maintained for two years or the period required by the Rules, whichever is greater. Organization will permit and will pay all expenses of periodic examination and audit of functions at such frequency, as Paya deems appropriate. Audits will meet Paya's standards, and the results will be made available to Paya. Organization will not accept cash, checks or other negotiable items from any Debit Cardholder and forward a credit through any network (i.e., as a purported payment or deposit to an account maintained by the Debit Cardholder). Organization will not forward through any network any Transaction or initiate any reversal of a Transaction that did not originate between Organization and the Debit Cardholder. (b) Prevention of Fraud. Organization will fully cooperate with Paya and Bank in the event that Bank or Paya determines that there is a substantial risk of fraud arising from Organization's access to the network. Organization will take whatever actions Bank or Paya reasonably deem necessary in order to protect Paya and/or the Bank. Neither Paya, Bank nor any of their respective personnel will have any liability to Organization for any action taken in good faith. FI«,:G �,,•-0501640} IZLiV U3) I2Il20 PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. (c) Display of Network Trademark(s); Protection of Trade Secrets. In order to inform Debit Cardholders that Debit Card Sales may be transacted at Organization's locations, Organization will prominently display the trademark and/or service mark of each network at each location and will display signage of each network on or near to all POS terminals. All uses by Organization of any trademark and/or service mark will comply with the applicable Rules. Organization acknowledges and agrees that in displaying any such trademark and/or service mark, Organization will be acting under Paya's and/or Bank's control and subject to approval by the applicable network. Organization will not be deemed, under any circumstances, a licensee or sub -licensee of any trademark or service mark of any network, nor will Organization otherwise be deemed to have or to acquire any right, title or interest in trademarks or service marks. (d) Returns and Adjustments. Organization will attempt to settle in good faith any dispute between it and a Debit Cardholder involving a Debit Card Sale. Organization will establish a fair, consistent policy for the exchange and return of merchandise and for the adjustment of amounts due on Debit Card Sales. Organization will not make any cash refunds or payments for returns or adjustments on Debit Card Sales but will instead complete a form provided or approved by Bank ("Adjustment Draft"). The Sales Transmittal for any Debit Card Sale for which no refund or return will be accepted by Organization must be clearly and conspicuously marked (including on the Debit Cardholder's copy) as "final sale" or "no return" and must comply with the Rules. (e) Presentation of Sales Transmittals and Adjustment Drafts. Organization will electronically transmit to Bank all Sales Transmittals or Adjustment Drafts in a manner acceptable to Bank. Organization will make a good faith effort to electronically transmit data within one banking business day after the Transaction date. Organization will not extend the time of payment for or extend credit for any part of a Debit Card Sale. Organization represents and warrants that the electronic transmission of each Sales Transmittal and Adjustment Draft will evidence a true record of the Debit Card Sale Transaction reflected on the document. Bank will process Debit Card Sales transmitted by Organization, and Bank will promptly credit, debit or charge, as applicable, the appropriate amount to the Account. Within a reasonable time after the end of each calendar month, Bank will calculate the applicable amount of fees and other charges owed by Organization, and Bank will debit the Account in the amount of such fees and other charges. The amount of such fees to be paid by Organization are set forth on Schedule of Fees in this agreement. Such fees may be amended at any time by Bank and/or Paya upon written notice to Organization. Bank may refuse to accept or may revoke its acceptance of any Sales Transmittal or Adjustment Draft, and Bank may debit, charge or credit the Account in the corresponding amount, if: (i) the Debit Card was completed without prior Authorization; (ii) the Sales Transmittal or Adjustment Draft involved circumstances constituting a breach of any agreement, representation, or warranty by Organization; (iii) the Debit Card Sale was in violation of applicable law, the Rules or regulations; (iv) the Debit Cardholder is Organization, any partner of or shareholder in Organization, or any affiliate, spouse or immediate family member of any of them; (v) the Debit Card Sale was not made in connection with the sale of goods or services by Organization. Bank may refuse or revoke the acceptance of any Sales Transmittal or Adjustment of Sales Transmittal upon the occurrence of any of the following events, and Bank may charge, debit or credit the Account in the corresponding amount if: (a) Organization defaults in paying when due any obligation to Bank or Paya; (b) any material adverse change in Organization's financial condition occurs; (c) any deposit account at Bank or any of Organization's property in the possession of Bank is gamished or attached; (d) Organization assigns its assets generally for the benefit of creditors; (e) a proceeding is commenced by or against it under any bankruptcy, insolvency or similar law seeking an order to adjudicate it a bankrupt or insolvent or other relief, or seeking appointment of a receiver or similar official for Organization or for any substantial part of Organization's assets. Organization will notify Bank and/or Paya in writing immediately upon becoming aware that any such event has occurred or is likely to occur. Bank will notify Organization promptly of all Adjustment Drafts. Additionally, Bank will advise Organization on each debit, charge and credit processed to the Account. Organization authorizes Bank to charge debits arising from this Agreement against any credit due Organization, whether or not such charges create overdrafts or a debit balance in the Account. Organization agrees to pay Bank or Paya, as applicable, the full amount of any such overdraft or debit balance or to replenish the Account in an amount sufficient to permit the amount of the charge to be made, as applicable, promptly upon request. Organization further authorizes Bank to suspend in a segregated account amounts which otherwise would be credited to the Account if Bank or Paya reasonably believe that the Sales Transmittals submitted by Organization are fraudulent. Bank or Paya will notify Organization of the suspension of such amounts within a reasonable time; provided, however, that such notice will not be required if the appropriate law enforcement agency has been notified of the suspected fraud. ARTICLE IV— GATEWAY PROGRAMMING 4.oi Applicability to this Agreement. In addition to all the other provisions of this Agreement, the provisions of this Article IV shall apply if Organization utilizes web services from Paya, including the Paya payments gateway, vault services, any application program interface, code samples, web services, integration specifications, and any offline components (collectively " WebServices"). 4.o2 License Grant. Subject to the terms and conditions of this Agreement, Paya hereby grants to Organization a non-exclusive, non- transferable, limited license (without the right to sublicense) to access and use the Web Services. 4.os Programming of Web Site. While Paya provides specific API's or programming scripts to Organization or Organization's Web site programmer(s), Organization acknowledges that such sample programming scripts are insufficient in and of themselves to allow Organization's Web site to function with the Web Services. Programming of Organization's Web site and its functionality are the sole responsibility of Organization. 4.04 Organization's Programming Agent. Organization has the sole responsibility to select and employ any competent programming agent to accomplish the programming required to make Organization's Web site function correctly with the Web Services. 4.o5 Fees Subject to Fluctuation. Fees for the electronic commerce payment system offered by Paya may be based on the number and/or volume of monthly transactions processed by the Organization. Thus, notwithstanding anything to the contrary herein, the provisions of this Agreement which require notice prior to a change in fees shall not apply to any transactions or services covered by this Article 4. r tdFs.e4aFt;w REV 0311'_'020 1�...... I ".,'-0501640} PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. 4.06 Technical Support. Organization shall be solely responsible for all technical support for Web site -related issues 4.07 Shut Downs/Updates. Paya reserves the right, from time to time, without prior notice, to shut down and restart the Web Services for maintenance and/or Web Services upgrades or updates from time to time. Paya will use commercially reasonable efforts to keep service shut downs as brief as possible. Organization must monitor updates and upgrades to the Web Services and update Organization's Web site and programming accordingly. 4.os Disclaimer. PAYA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE WEB SERVICES OR ANY CONTENT STORED THEREIN. PAYA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE WEB SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR -FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (B) THE WEB SERVICES WILL MEET ORGANIZATION'S REQUIREMENTS OR EXPECTATIONS. THE WEB SERVICES ARE PROVIDED ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF ORGAN IZATIONABI LITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON -INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Paya AND ITSLICENSORS. ARTICLE V - TERMINATION AND EFFECT OF TERMINATION 5.oi Tenn: Termination. (a) Paya Organization Processing Account shall have an initial term of three (3) years and Paya Mobile Payments Account shall have an initial term of one (1) month (respectively the "Initial Tern") and shall commence on the earlier of (i) Paya's acceptance hereof (evidenced by the execution of the Agreement by Paya); (ii) the date of written notice from Paya that Organization's payment acceptance Application is approved for processing; or (iii) the date on which Organization's first Transaction is processed, and (iv) shall automatically renew as follows: (1) Paya Organization Processing Account shall renew for consecutive (1) year terms; and (2) Paya Mobile Payments Account shall renew on a month -to -month basis (respectively the "Renewal Term'), and unless terminated as set forth below; (b) This Agreement may be terminated by any party effective at the end of the Initial or any Renewal Term by providing written notice to the other parties of its intent not to renew no less than thirty (30) days prior to the expiration of the then - current term. Additionally, this Agreement may be terminated: (i) by Paya and Bank at any time with or without cause, and without prior notice, and (ii) by Organization in the event of a material breach of the terms of this Agreement by Paya and Bank, provided Organization provides Paya and Bank written notice of the alleged breach and the breach remains uncured for a period of 30 days following receipt of written notice by the breaching party (c) Organization shall pay any fees, fines, third party costs or penalties which Paya may be assessed due to Organization's breach of this Agreement. All rights and obligations of the parties existing as of the effective time of termination will survive termination; (d) Within Paya's and Bank's sole discretion, if Organization's or any of its principal(s)' business credit deteriorates, if any significant circumstances exist that would create harm or loss to the goodwill of a card association or payment network system, or if any case or proceeding is commenced by or against Organization under any federal or state law dealing with insolvency, bankruptcy, receivership or other debt relief, this Agreement shall simultaneously therewith automatically terminate, and any amounts due to Bank and Paya shall accelerate and become immediately due and payable, without the necessity of any notice, declaration or other act whatsoever by Bank and Paya. Organization agrees to notify Paya and/or Bank immediately of any bankruptcy, receivership, insolvency or similar action initiated by or against Organization. S.oe Effect of Termination. (a) In the event of termination for any reason, Organization expressly authorizes Bank and Paya to withhold and discontinue the disbursement for all Cards and other payment Transactions of Organization in the process of being collected and deposited; (b) Collected funds will be placed in the Reserve Account (defined below) until Organization pays any equipment and processing cancellation fees and any outstanding charges, losses or amounts for which Organization is liable under this Agreement. Further, Bank reserves the right to require Organization to deposit additional amounts based upon Organization's processing history and/or anticipated risk of loss to Bank into the Reserve Account. The Reserve Account shall be maintained a minimum of 270 days after the termination date and for any reasonable period thereafter, during which Cardholder disputes may remain valid under the Rules. The provisions of this Agreement relating to the debiting and crediting of the Account shall be applied to the Reserve Account and shall survive termination of this Agreement until Bank terminates the Reserve Account. Any balance remaining after Chargeback rights have expired and all other expenses, losses and damages have been paid will be disbursed to Organization; (c) Organization expressly acknowledges that the MATCH system and Early Termination File (collectively, the "MATCH") is maintained by Mastercard and Visa and contains the business name and the names and identification of principals of Organization which have been terminated for one or more of the reasons specified in the Rules. Such reasons include, but are not limited to: fraud, counterfeit paper, unauthorized Transactions, excessive Chargebacks or highly suspect activity. Organization acknowledges that Paya and Bank are required to report the business name of the Organization and the names and identification of its principals to MATCH when Organization is terminated for such reasons. Organization consents to such reporting to the card associations and/or payment networks as applicable by Bank and Paya. Further, Organization waives and will hold harmless Bank and Paya from any claims that Organization may raise because of such reporting (without waiving any of its rights under the sovereign immunity statutes of the State of Florida, to the extent applicable), (d) Upon termination for any reason, Organization will immediately cease requesting Authorizations and will cease transmitting Sales Drafts to Bank and Paya. In the event Organization obtains any Authorization after termination, Organization expressly acknowledges and agrees that the fact that any Authorization was requested or obtained shall not operate to reinstate this Agreement; (e) Following termination, Organization shall upon request provide Bank and Paya with all original and microfilm copies of Sales Drafts and Credit Vouchers to be retained as of the date of termination. ARTICLE VI - ACCOUNTS; SECURITY INTERESTS; INDEMNIFICATION s.oi Accounting Monitoring. (a) Organization agrees that Paya and Bank may suspend, within their sole discretion, the disbursement of Organization's funds for any reasonable period of time required to investigate suspicious or unusual deposit activity. Paya and Bank will make good faith efforts to notify Organization promptly. Paya and Bank shall have no liability for any losses, either direct or indirect, - -,1 - eu<s,t .....640} Rt G �;31 I =�',2 ..� PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. which Organization may attribute to any suspension of funds disbursement; (b) In the event of unusual Transactions that have been .'suspended" and cannot be verified as valid sales or have been verified as Cardholder disputes, Organization is responsible for any fees or fines passed through from any Bank or Payment Network or any additional monitoring or auditing fees.; (c) Organization's presentation to Paya and Bank of Excessive Activity will be a breach of this Agreement and cause for immediate termination of this Agreement. "Excessive Activity" refers to any period of two or more calendar months during which Organization has a Chargeback ratio that exceeds 1 % by number of Transactions or a Chargeback ratio that exceeds 1 % by dollar volume. Organization authorizes, upon the occurrence of Excessive Activity, Bank and Paya to take additional actions as either of them may deem necessary, including, but not limited to, suspension of processing privileges, increase of any fees that may be charged to Organization and/or creation or maintenance of a Reserve Account in accordance with this Agreement. 6.og, Forms. Organization shall use only such forms or modes of transmission of Sales Drafts and Credit Vouchers as are provided or approved in advance by Paya and Bank, and Organization shall not use forms provided by Bank and Paya other than in connection with Transactions without Paya's and Bank's prior written consent. 6.os Records. In addition to any records routinely furnished to Paya and Bank under this Agreement, Organization shall preserve a paper or electronic copy of all actual paper Sales Drafts, Credit Vouchers and Debit Card Sales and, if a mail, phone order or preauthorized order is involved, the Cardholder's signed authorization for the Transaction, for at least 3 years after the date Organization presents the Transaction. If Records and/or data on Paya's system associated with Organization are subpoenaed by legal process or otherwise, Paya shall produce such records in accordance with the subpoena without notice to Organization. 6.o4 Requests for Copies. Within 3 days of receipt of any written or verbal request by Bank and Paya, Organization shall provide either the actual paper Sales Draft, Credit Voucher and/or Debit Card Sales or a legible copy thereof (in size comparable to the actual voucher or draft ) and any other documentary evidence available to Organization and reasonably requested by Bank or Paya to meet Bank's obligations under law (including its obligations under the Fair Credit Billing Act) or otherwise to respond to questions concerning Cardholder accounts. 6.06 IRS Withholdings and Reporting. Section 605OW of the Internal Revenue Code ("Code") requires payment providers and third party payment networks, such as Paya, to report payment settlement amounts to the Internal Revenue Service ("IRS") for each Organization processing through Paya. Organization shall verify its identity by providing Paya with a Tax Identification Number ("TIN") such as a Social Security Number (SSN) or Employer Identification Number (EIN) for each Organization Account. In the event Organization fails to provide its TIN, Paya will place a restriction on Organization's Account and may restrict the receipt of funds into Organization's Account, or withhold a percentage of payments deposited into Organization's Account in order to satisfy the backup withholding requirements of the IRS. 6.06 Security Interests, Reserve Account, Recoupment and Set -Off: (a) Paya may establish and maintain a non -interest bearing account ("Reserve Account') in the name of Bank at any federally insured financial institution, with sums provided by Organization that are sufficient to satisfy Organization's current or future obligations as determined by Bank and Paya: (i) Bank and Paya shall have the right to initiate a debit to the Account or any other account at any institution to establish or maintain funds in the Reserve Account. Bank or Paya may deposit into the Reserve Account funds they would otherwise be obligated to pay Organization, for the purpose of establishing or maintaining the Reserve Account in accordance with this Section, if they determine such action is reasonably necessary to protect their interests; (ii) Bank, on its own behalf or at Paya's request, may, without notice to Organization, apply deposits in the Reserve Account against any outstanding amounts Organization owes under this Agreement or any other agreement between Organization and Bank or Paya. Paya or Bank may exercise their rights under this Agreement to collect any amounts due to Bank or Paya including, without limitation, rights of set-off and recoupment. Organization shall have no right to withdraw funds or debit the Reserve Account. In the event of a bankruptcy proceeding, Bank and Paya may exercise their rights under this Agreement to debit the Reserve Account for amounts due Bank and Paya regardless of the pre -petition or post -petition nature of the amount due Bank and/or Paya. In the event of a bankruptcy proceeding, Organization also agrees that it will not contest any Motion for Relief from the Automatic Stay, which Bank and Paya may file to debit the Reserve Account. As set forth in Section 5.02, funds in the Reserve Account will remain in the Reserve Account for a minimum of 270 days following termination. Bank will have sole control of the Reserve Account. In the event of a bankruptcy proceeding, Bank and Paya do not consent to the assumption of this Agreement. Nevertheless if this Agreement is assumed Organization agrees that, in order to establish adequate assurance of future performance within the meaning of 11 U.S.C. Sec. 365, as amended from time to time, Organization must establish or maintain a Reserve Account in an amount satisfactory to Bank and Paya; (b) Bank and Paya 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 Account, and (ii) any other amounts Paya and Bank may owe Organization under this Agreement or any other agreement; (c) The rights conferred upon Bank and Paya in this Section are not intended to be exclusive of each other or of any other rights and remedies of Bank and Paya under this Agreement, at law or in equity. Rather, each and every right of Bank and Paya at law or in equity will be cumulative and concurrent and in addition to every other right. 6.07 Third Parties. (a) Organization may be using special services or software provided by a third party to assist Organization in processing Transactions, including authorizations (for which Organization is using Authorize,. net), and settlements, or accounting functions. Organization is responsible for ensuring compliance with the requirements of any third party in using their products. This includes making sure Organization has and complies with any software updates. Paya and Bank have no responsibility for any transaction until that point in time Paya receives data about the transaction; (b) Organization will notify Paya immediately if Organization decides to use electronic authorization ordata capture terminals or software provided by any entity other than Paya or its authorized designee ("third party terminals") to process Transactions. If Organization elects to use third party software or terminals, Organization agrees (i) the third party providing the software orterminals will be Organization's agent in the delivery of Transactions to Bank 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 Bank nor Paya will be responsible for any losses or additional fees incurred by Organization as a result of any error by a third party agent or a malfunction in a third party's software or terminal. 10 s (ZLi\'fill I I t1 l��� �, 0501640) - PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. 6.08 Modifications to Agreement This Agreement is subject to amendment by Paya to conform to the Rules. Further, Paya and Bank may, from time to time, amend any provision of this Agreement, including, without limitation, those relating to the discount rate or to other fees and charges payable by Organization by providing written notice, including electronic written notice, to Organization of the amendment, and the amendment shall become effective unless Bank and Paya receive Organization's notice of termination of this Agreement within 7 days. Amendments due to changes in a Payment Brand's fees, interchange, assessments, Rules or any law, regulation or judicial decision may become effective on such shorter period of time as Paya and Bank may specify if necessary to comply with the applicable Rule, law, regulation, decision or other change. 6.og Limitation of Liability: Indemnity. (A) THE LIABILITY, IF ANY, OF BANK AND PAYA UNDER THIS AGREEMENT WHETHER TO ORGANIZATION OR TO ANY OTHER PARTY, WHATEVER THE BASIS OF THE LIABILITY, SHALL NOT EXCEED IN THE AGGREGATE THE DIFFERENCE BETWEEN (1) THE AMOUNT OF FEES PAID BY ORGANIZATION TO PAYA AND BANK DURING THE MONTH IN WHICH THE TRANSACTION OUT OF WHICH THE LIABILITY AROSE OCCURRED, AND (II) ASSESSMENTS, CHARGEBACKS, AND ANY OFFSETS AUTHORIZED UNDER THIS AGREEMENT AGAINST SUCH FEES WHICH AROSE DURING SUCH MONTH. IN THE EVENT MORE THAN ONE MONTH IS INVOLVED, THE AGGREGATE AMOUNT OF PAYA AND BANK'S LIABILITY SHALL NOT EXCEED THE LOWEST AMOUNT DETERMINED IN ACCORD WITH THE FOREGOING CALCULATION FOR ANY ONE MONTH INVOLVED. IN NO EVENT WILL BANK, PAYA, NOR ITS OR THEIR OFFICERS, AGENTS, DIRECTORS, OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES AND SUBJECT TO THE FOREGOING LIMITATIONS, PAYA HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS ORGANIZATION, ITS OFFICERS, EMPLOYEES AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS WHICH MAY ARISE AS A DIRECT RESULT OF THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE CAUSED BY PAYA HEREUNDER(B) TO THE EXTENT ALLOWED UNDER LAW, ORGANIZATION HEREBY AGREES TO INDEMNIFY AND HOLD BANK, PAYA AND ITS AND/OR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE "INDEMNIFIED PARTIES") HARMLESS FROM ANY CLAIM RELATING TO:, (1) ANY DISPUTE BETWEEN ORGANIZATION AND A CARDHOLDER WITH RESPECT TO THE ALLEGED OR ACTUAL FAILURE BY ORGANIZATION TO PROCESS A TRANSACTION AS REQUESTED BY SUCH CARDHOLDER OR TO PROVIDE PHYSICAL SECURITY AT OR NEAR ANY TERMINALS OR OTHER PREMISES OF ORGANIZATION, OR THE TRANSMISSION OR DISCLOSURE OF ANY INFORMATION BY OR THROUGH PAYA, (II) THE TRANSMISSION OF ANY INCORRECT OR INCOMPLETE INFORMATION TO A CUSTOMER OF ANY NETWORK MEMBER THROUGH THE NETWORK REGARDING AN ACCOUNT MAINTAINED BY SUCH CUSTOMER, OR THE DISCLOSURE THROUGH SUCH NETWORK TO ANY PARTY OF INFORMATION RELATING TO ANY SUCH ACCOUNT; AND (III) ORGANIZATION'S FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS AGREEMENT AND APPLICABLE LAWS, RULES AND/OR REGULATIONS, INCLUDING WITHOUT LIMITATION DISPUTES RESULTING FROM ORGANIZATION'S FAILURE TO PROVIDE A SALES TRANSMITTAL. ORGANIZATION FURTHER AGREES TO INDEMNIFY AND HOLD THE INDEMNIFIED PARTIES HARMLESS FROM ALL CLAIMS, LIABILITY AND EXPENSES ARISING OR RESULTING FROM ANY DISPUTE OR CLAIM MADE AGAINST BANK AND/OR PAYA BY ANY THIRD PARTY ARISING OUT OF ORGANIZATION'S BREACH OF THIS AGREEMENT OR THE RULES. FURTHER, ORGANIZATION SHALL REIMBURSE BANK OR PAYA, AS THE CASE MAY BE, FOR ALL EXPENSES AND COSTS, INCLUDING ATTORNEY'S FEES, WITH REGARD TO THE FORGOING; (C) NEITHER BANK NOR PAYA MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY SERVICES IT PERFORMS IN ACCORDANCE WITH THIS AGREEMENT, AND NOTHING CONTAINED IN THE AGREEMENT WILL CONSTITUTE SUCH A WARRANTY. PAYA AND BANK DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THOSE OF ORGAN IZATIONABI LITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT. THE PARTIES AGREE THAT NOTHING WITHIN THIS AGREEMENT SHALL OPERATE OR BE DEEMED TO WAIVE ORGANIZATION'S RIGHTS UNDER APPLICABLE SOVEREIGN IMMUNITY STATUTES TO THE EXTENT APPLICABLE. 6.io Account. (a) Organization will establish and maintain an account at Bank or at any federally insured financial institution ("Account") reasonably approved by Bank in the United States. Organization will maintain sufficient funds in the Account to satisfy all obligations, including fees, contemplated by this Agreement. Organization irrevocably authorizes Paya and/or Bank to debit the Account for Chargebacks, fees and any other penalties or amounts owed under this Agreement. Organization must provide written notice of change to Paya to change the Account. If Organization does not provide notice , Paya or Bank may immediately terminate the Agreement and may take other action necessary, as determined by them within their sole discretion; (b) Bank will deposit all Sales Drafts to the Account subject to Section 3.01 of this Agreement. Organization authorizes Bank and Paya to initiate reversal or adjustment entries and initiate or suspend such entries as may be necessary to grant Organization conditional credit for any entry, (c) Bank, in its sole discretion, may grant Organization provisional credit for Transaction amounts in the process of collection, subject to receipt of final payment by Bank and Paya and subject to all Chargebacks and other amounts owed to Bank and Paya under this Agreement; (d) Organization shall promptly examine all statements relating to the Account, and immediately notify Paya and Bank in writing of any errors. Organization's written notice must include: (i) Organization 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 Organization believes an error exists and the cause of it, if known. That written notice must be received by Paya and Bank within 60 days after Organization received the periodic statement containing the asserted error and failure to provide such notice shall bar any claim of errors. ORGANIZATION MAY NOT MAKE ANY CLAIM AGAINST BANK OR Paya FOR ANY LOSS OR EXPENSE RELATING TO ANY ASSERTED ERROR FOR 60 DAYS IMMEDIATELY FOLLOWING RECEIPT OF ORGANIZATION'S WRITTEN NOTICE. During that 60 day period, Paya and Bank will be entitled to investigate the asserted error, and Organization will not incur any cost or expense in connection with the asserted error without notifying Paya; (e) Organization will indemnify and hold Paya and Bank harmless for any action they take against the Account pursuant to this Section. Organization will also indemnify and hold harmless the institution at which Organization maintains the Account for acting in accordance with any instruction from Bank or Paya regarding the Account. This Section will survive termination of this Agreement; (f) Organization authorizes Bank and Paya to initiate debit/credit entries to the Account, as the Account may be changed from time to time, all in accordance with this Agreement. In the event Organization changes the Account, Organization will notify Paya, with a copy to Bank, and this authorization will apply to the new Account. This authorization will be effective until both: (i) Paya and Bank have received written notification from Organization terminating this authorization, and (ii) all obligations of Organization to Paya and Bank have been paid in full. Organization will provide to Paya and Bank a voided Account check, and will fill in the Account numbers on theApplication. r — tt.o_:k 0501640 IZI_:A' 031 I2,21i PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. 6.11 Fees and Other Amounts Owed. (a) Organization shall pay the fees and charges as set forth on the Schedule of Fees included in this Agreement, the provisions of which are incorporated herein by reference. Unless otherwise noted, Organization shall pay all fees monthly, with the exception of the Discount Fee and/or interchange, which shall be paid either monthly or daily, as determined by Paya in its sole discretion. Organization may choose, however, to pay the discount fee on a daily basis by notice to Paya. The Account will be debited through ACH for such amounts and for any other fees, charges or adjustments incurred by Organization and associated with processing services. Organization is also obligated to pay all taxes and other charges that may be imposed on it by any governmental authority on the services provided under this Agreement (it being understood that Organization has no responsibility to pay any taxes owed by Paya or Bank). Bank and Paya shall have the right to change fees, including adding fees for additional services utilized by Organization, in accordance with Section 6.08. Paya shall communicate changes to fees instituted by any third parties upon receipt of notice of such changes as set forth in such section, and Paya's fees may change in accordance with the notice of change of fees from such third parties. Interchange Pass Through pricing ("IPT") as specified in this Agreement is comprised of interchange, fees, dues, and assessments assessed by card association. Cost -Plus pricing ("CP") is comprised of IPT plus the Cost Plus Rate set forth in this Agreement, which is charged to each settled Card and Debit Card Transaction. Organization may call Paya customer service with any questions regarding pricing, qualifications exceptions, and billing. Paya does not refund fees for returns; (b) Organization will immediately pay Paya and Bank any amount incurred by Paya attributable to this Agreement or any other agreement between Organization and Paya or any subsidiary or affiliate of Paya, including but not limited to equipment fees, Chargebacks, fines imposed by a third party, non -sufficient fund fees, and ACH debits that overdraw the Account, Reserve Account, or are otherwise dishonored. Organization authorizes Paya and Bank to debit via ACH the Account, Reserve Account, any other account Organization has with Paya, an affiliate or subsidiary of Paya, Bank or at any other financial institution for any amount Organization owes under this Agreement or under any other contract, note, guaranty, or dealing of any kind now existing or later entered into between Organization and Paya or any subsidiary or affiliate, whether Organization's obligation is direct, indirect, primary, secondary, fixed, contingent, joint or several. In the event such ACH does not fully reimburse Paya and Bank for the amount owed, Organization will immediately pay Paya and Bank such amount. 6.19, Deleted ARTICLE VII- MISCELLANEOUS 7.01 Waiver. Failure by Organization, Bank or Paya to enforce one or more of the provisions of this Agreement shall not constitute a waiver of the right to enforce the same or other provision in the future. The waiving party must sign all waivers. 7.o2 Notices. All notices and other communications required or permitted under this Agreement shall be deemed delivered when sent by e-mail or mailed, postage prepaid, addressed as follows If to Paya: If to Bank: Paya Inc 12120 Sunset Hills Rd STE 500 BMO Harris N.A. Reston, Virginia 22102 111 W. Monroe Attn: Chief Financial Officer Chicago, II 60603 Attn. Customer Service If to Organization, at the address provided as the billing address and to the contact listed on the Application or e-mail. To the fullest extent permitted by applicable law, notices or other communications regarding the Company Services ("Communications") may be provided to Organization electronically and Organization agrees to receive all Communications from Company in electronic form. Electronic Communications may be delivered to Organization's email address specified by Organization), if Organization has selected such method of notification. All Communications delivered by Company to Organization in either electronic or paper format will be considered to be in 'Writing," and to have been received no later than five (5) business days after posting or dissemination, whether or not Organization has received or retrieved the Communication. Company reserves the right but assumes no obligation to provide certain notices hereunder in paper format. 7.03 Choice of Law: Jurisdiction. This Agreement and all matter related thereto shall be construed in accordance with the laws of the State of Delaware except those rules relating to conflicts of laws. 7.o4 Entire Agreement: Assignability. This Agreement, these Terms and Conditions of Organization Agreement and any supplementary documents indicated herein, expresses the entire understanding of the parties with respect to its subject matter and except as provided herein, may be modified only in writing executed by all parties. This Agreement may be assigned by Paya and Bank with notice to Organization, who may then terminate this Agreement should the assignee(s) be included amongst those entities with which the Organization is precluded to conduct business under Florida law. In the event, for whatever reason, Organization's payment acceptance Application does not meet standard underwriting criteria, and satisfies only sub -standard underwriting criteria, Organization acknowledges the completed Application may be forwarded to an alternative Member processor for review and approval. Organization may only assign this Agreement to a municipality of the State of Florida, and in order to effectuate such assignment, it shall provide Paya and Bank with no less than thirty days' prior notice. If Organization nevertheless assigns this Agreement without such consent, the Agreement will be binding on the assignee. This Agreement shall be binding upon and inure to the benefit of the parties' respective successors and permitted assigns. 7.06 Credit and Financial Inquiries: Inspections. (a) Organization authorizes Bank and Paya to make, at anytime, any credit inquiries which either may consider necessary to accept or review acceptance of this Agreement or investigate Organization's deposit or Card acceptance subsequent to acceptance ofthis Agreement. Such inquiries shall include, but are not limited to, a credit check of the business including its proprietor, partners, principal owners or officers. If requested to do so by Bank or Paya, Organization shall provide the written consent of any person for which an inquiry has been or is to be made if such person has not executed this Agreement and will provide any financial statements, income tax and business tax returns and other financial information as Bank or Paya may consider necessary to perform initial or periodic reviews of Organization's financial stability and business practices, (b) Organization may honor Cards only t,,,,,.,,, ,, . , — ,, 05016ao) PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. at locations approved by Paya and Bank. Additional locations may be added, subject to Paya and Bank's written approval. All current and future locations are bound by the terms and conditions of this Agreement. Either Organization or Paya may delete any location by providing notice as provided in this Agreement; (c) Organization agrees to permit Bank or Paya at any time from time to time, to inspect locations to confirm that Organization has or is adhering to the terms of this Agreement and is maintaining the proper facilities, equipment, inventory, records and license or permit (where necessary) to conduct its business. However, nothing in this Section shall be deemed to waive Organization's obligation to comply in all respects with the terms of this Agreement; (d) Representatives of Bank or Paya may, during normal business hours, inspect, audit and make copies of Organization's books, accounts, records and files pertaining to any Transaction. 7.06 Deleted 7.07 Deleted 7.o8 American Express Card Acceptance. In addition to other applicable provisions of this Agreement, the following provisions apply to Organization's acceptance of American Express Cards: (a) This Agreement governs Organization's acceptance of American Express Cards under American Express's "OptBlue Program". If and when the Transactions submitted by American Express Cardholders exceed the charge volume eligibility criteria for the OptBlue Program, American Express may require Organization to convert to a direct Card Acceptance Agreement with American Express. If this occurs, upon such conversion, (i) Organization will be bound by American Express's then- current Card Acceptance Agreement; and (ii) American Express will determine the pricing and other fees payable by Organization under the Card Acceptance Agreement; (b) Organization's participation in the OptBlue Program is subject to the approval of American Express. Organization authorizes Paya and/or its affiliates to submit Transactions to, and receive settlement on such Transactions from, American Express on behalf of Organization; (c) Organization shall not assign to any third party any payments due to it for American Express Card Transactions, and all indebtedness arising from such Transactions will be for bona fide sales of goods and services (or both) at its business locations and free of liens, claims, and encumbrances other than ordinary sales taxes; provided, however, that Organization may sell and assign future receivables to Paya, its affiliated entities and/or any other cash advance funding source that partners with Paya or its affiliated entities; (d) American Express shall have third -party beneficiary rights, but not obligations, to enforce the terms of this Agreement applicable to American Express Card acceptance against Organization; (e) Organization may opt out of accepting American Express Cards underthis Agreement by providing 30 days' notice to Paya without directly or indirectly affecting its rights to accept other Payment Brand Cards; (f) Except as provided in Section 7.08(g), Paya may disclose to American Express information regarding Organization and Organization's Transactions to American Express, and American Express may use such information to (i) perform its responsibilities in connection with American Express Card acceptance, (ii) promote American Express, (iii) perform analytics and create reports, and (iv) for any other lawful business purposes, including commercial marketing communications purposes within the parameters of American Express Card acceptance, and to provide important transactional or relationship communications from American Express. American Express may also use such information about Organization obtained in connection with this Agreement at the time of setup to screen and/or monitor Organization in connection with American Express marketing and administrative purposes; (g) Organization may opt -out of receiving American Express commercial marketing communications about products and services by selecting the opt- out option on its Application or subsequently by providing written notice to its primary relationship contact at Paya. Organization may continue to receive such communications from American Express after opting out while American Express updates its records to reflect Organization's opt -out choice; and (h) Organization may not bill or attempt to collect from any Cardholder for any American Express Transaction unless a Chargeback has been exercised, Organization has fully paid for such Chargeback, and it otherwise has the right to do so. 7.09 Paya Specific Services. In addition to other applicable provisions of this Agreement, the following provisions apply to Organization's acceptance of the services set forth below that are provided only by Paya: a) Paya Advanced Fraud Protection Service: Definitions. The following definitions apply only to the Paya Advanced Fraud Protection Service: "Business Day" means any day other than Saturday, Sunday, or any day designated as a U.S. banking holiday. "Cardholder Data" shall have the same meaning as set forth by the PC[ DSS Glossary "Cardholder Communication" means the data exchanged between Organization and a Cardholder when a Cardholder initiates a Transaction, which may include Personal Data. "Delivered Data" means real-time risk opinions and report information delivered to Organization by Paya in connection with the provision of the Fraud Mitigation Service. "Indications" means the authorization code or risk control opinions generated by the System and returned to Organization in response to a Risk Inquiry. "Organization Communications" means the data exchanged between Organization and Paya and any Paya subcontractor for the benefit of a Organization, associated with the provision of the Fraud Mitigation Service, which may include Personal Data. "Personal Data" means: any personally identifiable information (including, without limitation, Cardholder Data) disclosed or otherwise provided to Paya by Organization that, if compromised, could result in identity theft, or any more restrictive definition required by applicable law. "RIS Update" means updated Transaction information transmitted by the Organization to Paya through the Risk Inquiry System, which includes all required data elements. "Risk Inquiry" means any Transaction initiated by Organization or a Cardholder of Organization in which the System is queried. "E. -a uitigation Service" means the fraud mitigation service offered as part of this Section. I ... ........ -, 0501640} REV 03111-020 PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. "System" means the Paya interface through which Organization initiates Risk Inquiries and RIS Updates, and through which Paya delivers risk replies and reports to Organization. (i) Organization Obligations. Organization will: (1) initiate a real-time Risk Inquiry through the Risk Inquiry System for every Transaction processed; (2) provide Paya with RIS Updates for all Risk Inquiries; (3) cancel all Transactions deemed as high risk by an Indication; (4) use all means available to Organization to detect and prevent fraudulent Transactions, including those required under the Organization Agreement, in addition to the Fraud Mitigation Service, and will not rely on the Fraud Mitigation Service as a fraud prevention guarantee. (ii) Access to Cardholder Communications. (1) Organization acknowledges and agrees that in order to provide the Fraud Mitigation Service, the System is required to access the contents of Cardholder Communications. Organization expressly consents and grants Paya permission to access Cardholder Communications to the extent necessary to provide the Fraud Mitigation Service; (2) Organization shall obtain, from any Cardholder initiating a Transaction for which Organization requests a Risk Inquiry, all consents necessary for Paya to access the pertinent Cardholder Communication to which Cardholder is a party (each a "Cardholder Consent"). Organization shall be solely liable for the legal adequacy of, the means used to obtain the Cardholder Consent and the failure to obtain such Cardholder Consent. (iii) Payment Terms: (1) Fees. Organization agrees to pay the fees set forth on the Application and Agreement for Organization Account — Bank Card and/or Fee Schedule ("Fees"). All Fees owed by Organization shall be billed and charged in accordance with the terms of the Organization Agreement. (iv) Ownership: (1) Intellectual Property. As between Paya and Organization, Paya retains all right, title, and interest in and to the Web Services. Except for the limited rights granted in this Agreement to use the Web Services and to receive Reports and Indications, Organization does not receive nor is granted any licenses or rights in the Web Services or the Fraud Mitigation Service whether by implication, estoppel, or otherwise. Organization agrees that it will not reverse -engineer, disassemble or decompile the Web Services or the Fraud Mitigation Service. Organization will not give any third party, except Organization's employees, access to the Web Services or Fraud Mitigation Service without Paya's prior written consent. (v) Personal Data. Personal Data submitted to Paya by Organization may be converted by Paya to digest form to be used for statistical and/or fraud prevention purposes. (vi) Upgrades and Additional Offerings. (1) Fraud Mitigation Service Modifications. Paya may modify the Fraud Mitigation Service, including by adding, modifying or removing features at any time during the Term in its sole discretion. Paya may also impose limits on certain features or restrict Organization's access to parts of the Fraud Mitigation Service without notice or liability to Organization; (2) Fraud Mitigation Service Maintenance. Should Paya (or Paya's vendors) need to perform maintenance on Paya's hardware or systems relating to the Fraud Mitigation Service, Paya will attempt to do so in a manner designed to not unreasonably interfere with Organization's use of the Fraud Mitigation Service. Should a critical maintenance situation arise, Paya may be required to and shall perform emergency maintenance at any time. During scheduled and emergency maintenance periods, the Fraud Mitigation Services may not be available. Organization agrees to cooperate with Paya during scheduled and emergency maintenance periods by providing reasonable assistance, (3) Quality Assurance Monitoring. For quality assurance, Paya may monitor or record telephone calls Organization makes to Paya in connection with the Fraud Mitigation Service. (vii) Organization Warranties: Organization represents and warrants to Paya that: (1) Organization shall not rely solely on its use of the Fraud Mitigation Service to comply with any laws, government regulations Rules or the Organization Agreement; and (2) Organization has and will comply with all laws and regulations Rules applicable to the Transactions relative to the Fraud Mitigation Service, and all laws relating to the collection, processing, sharing and disclosure of Personal Data (including, without limitation, in the United States and the European Union); (viii) Indemnification. (1) Organization Indemnification. To the extent permitted by law, Organization will defend, indemnify and hold harmless Paya and Paya's providers, officers, directors, agents, subsidiaries, subcontractors, vendors, and employees from any and all claims, lawsuits, demands, damages, costs, fines, fees or other expenses, (including reasonable attorneys' fees) resulting from or in any way related to Organization's use of the Fraud Mitigation Service, including but not limited to: (a) Organization's breach of any representation or warranty contained herein or arising by operation of law, (b) Organization's violation of the rights of a third party relating to Organization's use of the Fraud Mitigation Service, (c) the reliability, accuracy, or legitimacy of data submitted by Organization to Paya, or (d) any third party claim resulting from Organization's use of the Fraud Mitigation Service. Nothing herein shall serve as a waiver of Organization's sovereign immunity to the extent it may apply. (ix) Limitation of Liability. (1) In addition to the limitations of liability set forth in the Organization Agreement, Paya will have no liability for any reversals, refunds, fraud losses or chargebacks incurred by a Organization as a result of reliance upon an Indication or the Fraud Mitigation Service; (2) In the event of a Fraud Mitigation Service failure, Paya's sole responsibility shall be to correct the failure of the system. Paya shall not be liable for any resulting damages whatsoever, whether direct or indirect, foreseeable or unforeseeable, consequential, punitive or otherwise, claims to which are hereby specifically and expressly waived by Organization (3) IN NO EVENT SHALL PAYA'S LIABILITY TO ORGANIZATION FOR DAMAGES HEREUNDER FOR ANY CAUSE WHATSOEVER, AT LAW OR IN EQUITY, EXCEED THE AMOUNT PAID BY ORGANIZATION FOR USE OF THE FRAUD MITIGATION SERVICES DURING THE MONTH IMMEDIATELY PRECEDING THE DATE OF THE EVENT WHICH GAVE RISE TO THE LOSS OR INJURY. IN NO EVENT WILL Paya BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL OR OTHER SIMILAR DAMAGES ARISING OUT OF THIS AGREEMENT OR ORGANIZATION'S USE OR INABILITY TO USE THE FRAUD MITIGATION SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF PAYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (4) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR OR OMISSION, INTERRUPTION, DELETION, 1,­ , -, R I i V ti3112()20 PLEASE NOTE: The complete4Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION; and (5) Use of non -personally identifiable information. Organization agrees that Paya may disclose or use any data or information relating to Fraud Mitigation Service, or information in its aggregate form that Paya acquires in the course of providing the Fraud Mitigation Service, but only if the information does not contain any personally identifiable information. (x) Term; Termination. The Fraud Mitigation Service will commence on the Effective Date of the Agreement and will continue for Term of the Agreement or until such time as Paya discontinues the Fraud Mitigation Service. (1) Effect of Termination. Upon termination, all rights and obligations hereunder shall cease except Organization's obligation to pay the applicable fees and provide defense and indemnification for any claim arising out of Fraud Mitigation Service performed by Paya up to and including the Effective Date of termination. Organization will not be entitled to a refund of any fees paid by Organization in connection with the Fraud Mitigation Service prior to termination. (xi) Use of Subcontractors. Paya expressly reserves the right to perform any and all of the Fraud Mitigation Service provided under this Addendum through subcontractors and vendors. 7.10 Signature. Each party represents and warrants that the person executing this Agreement is duly authorized to bind that party to all provisions of this Agreement, and that such person is authorized to execute any documents and to take any action on behalf ofthat parry. 7.7.7. Force Majeure. The delay or inability of party to perform its obligations hereunder when required (other than Organization's payment obligations) if caused by events of Force Majeure, as defined herein, shall not constitute a breach or default and shall not subject such party to liability to any other party so long as such Force Majeure event exists. Force Majeure events shall include, without limitation, civil disturbances, epidemics, natural disasters, wars, acts of terrorism, acts of God, economic downturn and all other such events outside the control of the parties that make it impossible for one party to comply with its obligations hereunder. 7.12 General. If any provision of this Agreement is illegal or unenforceable, 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. Both parties agree that each is responsible for its employees' actions while in its employ. The parties do not intend to confer any benefits on any person or entity other than Organization, Bank and Paya. Article I, Sections 3.02, 3.04, Article V, Article VI, Article VI and any other provision that by their nature should survive termination will survive expiration or termination of thisAgreement. By signing below, the Entity named: (1) certifies to Paya that he/she is authorized to sign this Agreement on behalf of the Entity; (2) certifies that all information and documents submitted in connection with this Application are true and complete; (3) authorizes Bank or its agent to verify any of the information given, including credit references, and to obtain credit reports on the governmental entity; (4) has read, agrees to, and acknowledges receipt of the terms and conditions of the Organization Processing Agreement, presented above and incorporated herein by reference. The terms and conditions and the Enrollment form constitute the entire integrated Organization Processing Agreement by and between Entity, Paya and Bank; (5) agrees that Entity and each transaction submitted to Bank will be bound by the Agreement in its entirety; and (6) agrees that Entity will submit transactions to Bank only in accordance with the information in the Enrollment form and will immediately inform Paya, in writing at the address above if any information in the Enrollment form changes. The Agreement will become effective only when signed by Bank and Paya. Entity further acknowledges that, as used in this paragraph, "Bank" means the banking institution identified at the top of the first page of this document as the Settlement Bank. By signing below, I represent that the information I have provided on the payment acceptance Application is complete and accurate and I authorize American Express Travel Related Services Company, Inc (American Express) to verify the information on this Application and to receive and exchange information about me, including, requesting reports from credit reporting agencies. If I ask American Express whether or not a credit report was requested, American Express will tell me, and if American Express received a report, American Express will give me the name and address of the agency that furnished it. I understand that upon American Express' approval of the business entity indicated above to accept the American Express Card, the Terms and Conditions for American Express Card Acceptance ("Terms and Conditions') will be sent to such business entity along with a Welcome Letter. By accepting the American Express card for the purchase of goods and/or services, you agree to be bound by the Terms and Conditions. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of this day, Aphorized Officer (1) na ,---Printed Name Title Date Z�2 Michael Cernech City Manager 1 1 _ (&. J,6 Authorized Officer (2) Signature Printed Name Title Date (00409797.1 2704-0501640) REV 03112020 PLEASE NOTE: The complete Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. PAYMENT ACCEPTANCE SCHEDULE OF FEES Visa®, Mastercard®, Discover®, PIN Debit & American Express® OptBlue Interchange Fees, Card Association Dues & Assessments, Processor, and 3rd Party Fees Pass -Through Acquiring Fee (Interchange Plus) Month 1-12 0.25% Acquiring Fee (Interchange Plus) Month 13 - ongoing 0.50% Visa, Mastercard, Discover, and American Express Authorization (Interchange Plus $0.15 PIN Debit Authorization (Interchange Plus) $0.20 ACH —Authorization, Clearing and Settlement, non -guarantee $0.25 Other Fees: Monthly Support INCLUDED Monthly Minimum WAIVED Monthly Program Fee (includes e-statement) $15.00 Chargeback $15.00 ACH Returns $2.50 PCI Program — Monthly Compliance program $25.00 PC] Non -Compliance Fee per month (if Applicable) $95.00 Optional Services: Account Updater Monthly Fee (Optional) $25.00 Account Updater (per item) (per successful match or closed account per response) $0.30 Lockbox monthly support fees (Optional) $175 Lockbox item Fee (Optional) $0.30 eLockbox per item (optional) $0.25 Statement printing per page (optional) $0.145 Hardware Ingenico Lane 8000 (EMV Enabled) Power cord Ethernet / POE cable Ethernet or Wifr Capable Ingenico iSC 480 (EMV Enabled) Power cord Ethernet /POE cable Ethernet Capable $615.00 each Plus shipping $798.00 each Plus Shipping kfV0 31I 2H20 PLEASE NOTE: The complete4Payment Processing Agreement includes these Terms and Conditions with all exhibits and attachments, Schedule of Fees, and any supplementary documents, and the Payment Acceptance Enrollment Form. ex.s 1000 Business Center Dr. Lake Mary, FL 32746 800.727.8088 PAYMENT ACCEPTANCE APPLICATION ��; CENTRALSQUARE Partner ID: 909064 Sales Rep Name: Sales Rep ID: Application Date: ON •' A • Organization LEGAL Name (as it appears on the federal tax returns) Tax ID # (required, 9 digits) Organization DBA Name (if different from legal name) Organization Website URL Organization DBA Physical Address Organization Legal Address DBA City, State and Zip Code Legal City, State and Zip Code Organization Phone: Organization Fax: Signatory Contact: Title: Email: Alternate Signatory Contact: Title: Email: ❑ Muncipalty ❑ C Corporation ❑ S Corporation ❑ Partnership ❑ Other Governmental Entity ❑ LLC ❑ Non -Profit ❑ LLP ❑ I certify that I am a Foreign Entity / Non -Resident Alien (Bankcard Only) ® 1 certify that 1 am providing Authorization for the Electronic Issuance of IRS form 1099 Failure to provide accurate information may result in a withholding of merchant funding per IRS regulations (refer to 4 9.05 of the Terms and Conditions) BANKCARD DISCLOSURE IMPORTANT MEMBER BANK (ACQUIRER) REPONSIBILITIES IMPORTANT ORGANIZATION RESPONSIBILITIES 1. An American Express- /Discover•/Mastercard•/VInO Member is the only entity approved m extend acceptance&American Express LEnsure compliance with cardholder data security and stoa¢e reouirements. / Discover / Mastercard / Visa products directly to an organization. 2. An American Express /Discover / Mastercard / Visa Member must be a principal (signer) to your Processing Agreement. 2. Maintain Fraud and Charaeback aces below the thresholds. 3. The Amercan Eaoress / D'scwe / M %e cad / V' a Me be s resoons'bk fo ed cat O ¢a itaton on the cert vent American3. Review and Understand the terms of the Processing Agrcement �} Discove / M ste cad / Visa Ooe acne Rea tat ons hh h' h the Or¢a 'zat o m st comoH 4. The American Express/Discover/Mastercard/ Visa Member is resoonsiblefor and must orovide settlement funds to the oraanitatko 4. Comply with American Express' /Discover•/Mastercard•/ Visa* Ooeatin¢ Regulations. The American Express / Discover / Mastercard / Visa Member is responsible for all funds held in reserve that are derived from tlement. UNDERWRITING "PROFILE Bankcard -` Method of Sales (Total Must = 100%) Card Present Card Not Present $ $ $ % % Business Type ElInternet ElCard Not Present ❑ Card Present Billing Questionnaire (Explain yourbilling policy) Transaction Volume Monthly Volume Average Transaction Highest Transaction Describe products or services sold? If product/service delivery requires recurring billing, explain available billing options: [I Monthly El Quarterly. ❑ Semi -Annually [I Annually Is any part of your organization outsourced to a third -party? ❑Yes ❑ No If yes, explain: PRICING MODEL OPTIONS ❑ Fixed Fee Absorption —Fees Paid by Organization ❑Interchange Absorption —Fees Paid by Organization El Service Fee —fees Paid by Citizen [I Convenience Fee —Fees Paid by Citizen Card Types: El VISA El Mastercard ❑Discover El American Express El Debit ❑ By checking this box, Organization Opts Out of receiving future commercial marketing communications from American Express® ** `• Note that you may ccntinue to receive marketing communications while American Express° updates iYs records to reflect your choice. Opting out of commercial marketing epmmunitations wilt not preclude you from receiving important [; ansac[:pnal cr relationship n essages from American Express-. ACH AUTHORIZATION Jill Describe products or services sold? If product/service delivery requires recurring billing, explain available billing options: [I Monthly El Quarterly. ❑ Semi -Annually [I Annually Is any part of your organization outsourced to a third -party? ❑Yes ❑ No If yes, explain: PRICING MODEL OPTIONS ❑ Fixed Fee Absorption —Fees Paid by Organization ❑Interchange Absorption —Fees Paid by Organization El Service Fee —fees Paid by Citizen [I Convenience Fee —Fees Paid by Citizen Card Types: El VISA El Mastercard ❑Discover El American Express El Debit ❑ By checking this box, Organization Opts Out of receiving future commercial marketing communications from American Express® ** `• Note that you may ccntinue to receive marketing communications while American Express° updates iYs records to reflect your choice. Opting out of commercial marketing epmmunitations wilt not preclude you from receiving important [; ansac[:pnal cr relationship n essages from American Express-. ACH AUTHORIZATION Jill ACH Debit/Credit Authorization: The Organization named below hereby authorizes Paya, Inc. in accordance with this Agreement to initiate debit/credit entries to Organization's checking account, as indicated per the attached copy of a voided check from same. The authority is to remain in full force and effect until (a) One hundred and twenty (120) days after Paya, Inc. has received written notification from Organization of its termination in such a manner as to afford Paya, Inc. reasonable opportunity to act on it, and (b) all obligations of Organization to Paya, Inc. that have arisen under this Agreement have been paid in full. Bank Name: Depository:.•-i�actioi/wirnep,r:into nisar.count. Routing#: Account#: Fees: ..._:e•-sandargesuilbetaken r`o:c;h•sc-:cunt Routing#: Account#: $\I{j ■r-1i Efarrjy j;d,. Sponsor Bank: BMO Harris N.A. 1150 N.Martindale Rd. Suite 900 Schaumburg, IL 60173 I (847) 240-6600 REV 03252020 Page 1 of 2 PLEASE NOTE: The complete Payment Processing Agreement includes this Payment Acceptance Application and the Terms and Conditions. CERIFICATION AUTHORIZATION By signing below, the Organization named: (1) certifies to Paya that it is authorized to execute and deliver this Payment Acceptance Application, (2) and the person executing on behalf of the Organization is authorized to do so, (3) authorizes Paya to verify any of the information given, including credit references, and to run verification checks on the Organization; and (4) confirms it is advised by executing this form, it certifies that the information provided is true and complete. Any incorrect or omitted information may prevent the Organization from being approved, or if approved, may be grounds for immediate termination. Organization Name Authorized 0 Signature Name Title Date KfC (.�rVe Lz Authorized Officer (2) Signature Printed Name Title Date C f 4afT S flank Sponsor Bank: BMO Harris N.A. 1 150 N.Martindale Rd. Suite 900 1 Schaumburg, IL 60173 1 (847) 240-6600 REV 03252020 Page 2 of 2 PLEASE NOTE: The complete Merchant Agreement includes this Application and the Terms and Conditions which are delivered seperately. -A v y 0 0a a n 3 3 N � m w m, m T m pLn D 0Q O O O a _ ° ro Ln Lnn c A cLii < s O v D .�. A V�i Vf '� o� Z C v 0 o z cc � w � ° n — 3 3 o � m -a 3 m O (D m O N T 20 O r S fl m N :� ohm 03i 3 0 CD L, D" S a D J pq N m < T w w rD „ n (D.. -. N Z n O rD .� 3 C (., (� N D N C ~ r7+ N rD a N 9 e O 00 ((DD O 0 3 mmo 70 CD G r C Q '= rn . 00 s „ O d m 7 O_ e rD m rD lip e N O 0 cu. _ c m 7 ° c _ ^ 3 m N _PR v � o p a o ( O - 0 < o c m d W m rr r m m o w a 9 QC � s p (D C a :3 :3 a m 7c r N m m A D rD (D O O o O O Q. ;e .• v m .�+ > CDan .+ d m a c o () an + d c <n ' v 1 3 N 7 (D 7 C 13 v W w m m 3 M- W S D 3 TI rD("D OC �. A O Ql •• .03 m O O 0 O Clm O O. O .. `' C Do 0 O E rt T iD (D c X rrD D > O O 0 C � + s 3 rr � c m m r, 0 I rDm 3 m a Z fu m i D S S p. w O srD a v n D * o rD 3 0 0 � E O I n N 7 3 (D 3 (D (D (D C O (i ED S 0- 3 (l O S D (D i = - D — rD C o �o an D3- 3 m n m N a 7 cr (D rD c o (D C o N O -F r-F r=rD _ T. co � -* n Q s c 3. (D (D C ( DO rD D) (U I rD O 7 v T O Q CD N (D (D a O 3 0 O p O (D 7 d N. 7 D. X d rt d (D M 0 � d ci (D 7 rr O 3 rD r 3 m ti X D) vN 3 mm O y :3d N 3 s S S < -V C -0 D] C Ql o fl_ } _ Dl (D 3 n (1 7 C rF CD D C a Q 3 X a m h 0 3 � + m 3 � rD D) (D N rF (D O � 3 c � 0 o 0_ 3 m o � O 3 3 � O � O C t rD S (D (D (D (D X 0 7 Oq CL D w DO N �D O (D i 3 rD S rD f � c rD D Q n m zJ ■ r m c7 s z 0 r 0 m m N .] n (D m N fl C N (D .D N 3 (D 7 rr N D a F� v (D (D (D n T n� N Z 0 (D D 00 m (D 3 3 c rr 0- CD ao� ro a 0- rD 0 (D a 0 rD oa a o, 3 m L4 m a o, s (D n c (D v w crQ mrD CUSTOMER NO. 2427LG CONTRACT NO. 00006594 SOFTWARE LICENSE AND SERVICES AGREEMENT BETWEEN Superion, LLC a Limited Liability Company with headquarters at: 1000 Business Center Drive Lake Mary, FL 32746 ("Superion") AND City of Tamarac, FL with its principal place of business at 10 10 1 State Street Tama.-ac, FL 33321 (for purposes of thm Agreement, "Customer") By the signatures of their duly authorized representatives below, Superion and Customer, intending to be legally bound, agree to a!I of the provisions of :his Agreement and all Exhibits, Supplements, Schedu'es, Appendices, and/or Addenda to this Agreement, City of T Superion, LLC V PRINT NAME: ev'r—,L PRINT NAME: Lisa Neumann PRI NT TITLE: ,44G V1 Q !�` PRINT TITLE: Controller -----. ------ DATE SIGNED, " (_� _ DATE SIGNED: June 22, 2017 Page 1 of 29 SPS License 9P1312011 THIS AGREEMENT is made between Superion, LLC and Customer as of the Execution Date. The parties agree as follows: Definitions. "Baseline" means the general release version of a Component System as updated to the particular time in question through both Superion's warranty services and Superion's Maintenance Program, but without any other modification whatsoever. "Component System" means any one of the computer. software programs which is identified in Exhibit 1 as a Component System, including all copies of Source Code, Object Code and all related specifications, documentation, technical information, and all corrections, modifications, additions, improvements and enhancements to and all Intellectual Property Rights for such Component System. "Confidential Information" means non-public information of a party to this Agreement. Confidential Information of Superion includes the Software, all software provided with the Software, and algorithms, methods, techniques and processes revealed by the Source Cade of the Software and any software provided with the Software. Confidential Information does not include: information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; or (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non -disclosure obligation. "Delivery Address" means the Customer shipping address set forth in Exhibit 1 as the Delivery Address. "Delivery Date" means, for each Component System, the date on which Superion first ships the Component System to the Delivery Address F.O.B. Superion's place of shipment. "Discloser" means the party providing its Confidential Information to the Recipient. "Defect" means a material deviation between the Baseline Component System and its documentation, for which Defect Customer has given Superion enough information to enable Superion to replicate the deviation on a computer configuration that is both comparable to the Equipment and that is under Superion's control. "Execution Date" means the latest date shown on the signature page of this Agreement. "Equipment" means a hardware and systems software configuration meeting the "Equipment" criteria set forth in Exhibit 1. "Exhibit" means, collectively: (i) The schedules attached to this Agreement which are marked as "Exhibits," including all attached Software Supplements; and (ii) any schedule also marked as "Exhibits" (also including any attached Software Supplements) that is attached to any amendment to this Agreement. Other appendices to this Agreement are numbered sequentially and are also "Exhibits." "Intellectual Property }fights" means all patents, patent rights, patent applications, copyrights, copyright registrations, trade secrets, trademarks and service marks and Confidential Information. "Software" means the Component Systems listed in Exhibit 1. "Customer Employees" means: (i) Customer's employees with a need to know; and (ii) third party consultants engaged by Customer who have a need to know, who have been pre -approved by Page 2 of 29 SPS License 9/13/2011 Superion, and who, prior to obtaining access to the Software, have executed a Superion-approved non- disclosure agreement. "Obiect Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary form on software media, which are readable and usable by computer equipment. "Recipient" means the party receiving Confidential Information of the Discloser. "Reimbursable Expenses" means travel and meal expense pursuant to Superion Travel Expense Guidelines included in Exhibit 3. "Software Supplement" means, with respect to a Component System, the addendum provided as part of Exhibit 1 that contains additional terms, conditions, limitations and/or other information pertaining to that Component System. If any terms of a Software Supplement conflicts with any other terms of this Agreement, the terms of the Software Supplement will control. "Source Code" means computer programs written in higher -level programming languages, sometimes a-.companied by English language comments and other programmer documentation. 2. Right to Grant License and Ownership. Superion has the right to grant Customer this license to use the Software. Except as otherwise indicated in a Software Supplement, Superion owns the Software. 3. License. Subject to the terms and conditions of this Agreement, Superion grants Customer a perpetual, non-exclusive, non -transferable license to use and copy for use the Software on the Equipment within the United States of America for Customer's own, non-commercial computing operations. Any rights not expressly granted in this Agreement are expressly reserved. a) Software Code. Customer has right to use the Software in Object Code form. Customer also has the right (o use the Software in Object Code form temporarily on another Superion-suppori.ed configuration, fG1- disaster recovery of Customer's computer operations. b) Documentation. Except as otherwise provided for in the applicable. Software Supplement, Customer can make a reasonable number of copies of the documentation for each Com .:)onent System for its use in accordance with the terms of this Agreement. c) Restrictions on Use of the Software. Customer is prohibited from causing or permitting the reverse engineering, disassembly or decompilation of the Software. Customer is prohibited from using the Software to provide service bureau data processing services or to otherwise provide data processing services to third parties. Customer will not allow the Software to be used by, or disclose all or any part of the Software to, any person except Customer Employees. Without limiting the foregoing, Customer is permitted to allow use of the input and/or output sensory displays of or from the Software by third parties on a strict "need to know" basis, and such use will not be deemed a non -permitted disclosure of the Software. Customer will not allow the Software, in whole or in part, to be exported outside of the United States of America, in any manner or by any means, without in each instance obtaining Superion's prior written consent and, if required, a validated export license from the Office of Export Administration within the U.S. Department of Commerce and such other appropriate United States governmental authorities. d) Intellectual Property Rights Notices. Customer is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in or that Superion otherwise provides with the Software. Customer must reproduce the unaltered Intellectual Property ::lights notice(s) in any full or partial copies that Customer makes of the Software. 4, Source Code. Superion has placed the Source Code for those Superion-proprietary (as opposed to third party -owned) Component Systems identified in Exhibit 1 in escrow with Iron Mountain Intellectual Property Management ("Iron Mountain", formerly "DSI Technology Escrow Services Inc." or "DSI") pursuant to a Source Code Escrow Agreement between Iron Mountain and Superion ("Escrow Page 3 of 29 SPS Maintenance 7/1/2010 Agreement"). Superion updates such Source Code escrow deposits at least once a calendar year. Such Source Code will only be made available on the release terms of the Escrow Agreement, and only to those Superion licensees that have elected to be named "Preferred Beneficiaries" under the Escrow Agreement by executing a Preferred Beneficiary Acceptance Form (Exhibit 5) , The first year fee of $850 Is payable to Superion and is due by not later than thirty (30) days after receipt of the fully executed Preferred Beneficiaries Acceptance Form, and thereafter, applicable annual fee amounts will be billed by Iron Mountain (such amounts which will be due at the beginning of the applicable annual period in each instance), and should be remitted by Customer directly to Iron Mountain. For the avoidance of doubt, Customer's election to be named an escrow beneficiary is optional. Superion shall bill the annual Escrow Fee with Customer's Annual Maintenance. 6. Services. a) Generally. Superion will provide Customer with the information services identified in Exhibit 1, for the fees provided in Exhibit 1. b) Additional Services. Superion can also I)rovide Customer with additional information services, at Superion's then -current rates, or at such other rates as are agreed to by the parties in an amendment to this Agreement. c) Workmanlike Skills. Superion will render all services under this Agreement in a professional and workmanlike manner. Superion will promptly replace any Superion personnel that are rendering services on -site at a Customer facility if Customer reasonably considers the personnel to be unacceptable and provides Superion with notice to that effect, provided that such replacement does not violate any law or governmental regulation applicable to such personnel replacement. d) Conditions On Providing Serviced. In each instance in which Superion is providing Customer with services, Superion and Customer will develop a project plan that identifies each party's responsibilities for such services. The project plan will describe in detail the tentative schedule and the scope of services that Superion will provide. Custome! will establish the overall project direction, including assigning and managing the Customer's project personnel team. Customer must assign a project manager who will assume responsibility for managemen!` of the project. Customer must ensure that the Equipment is operational, accessible and supported at the times agreed to by the parties in the project plan. While Superion is providing such services, Customer must provide Superion with such facilities, equipment and support as are reasonably necessary for Superion to perform its obligations, including remote access to the Equipment. 6. Delivery. Except as otherwise provided in Exhibit 1, Superion will deliver all Component Systems to Customer at the Delivery Address. Payment and Taxes. a) Payment. i) License Fees. Fees for the Software will be due to Superion as provided for in Exhibit 1. ii) Professional Services Fees/Milestone Billing. Professional Services Fees shall be billed in accordance with the Milestone Billing Schedule — Exhibit 2 Schedule B. Professional Services will be invoiced on a monthly basis in arrears and will be due within thirty (30) days from the date of invoice. Customer will reimburse Superion for actual travel and living expenses that Superion incurs in providing Customer with -services under this Agreement. Such travel and living expenses will be governed by the Superion Travel Expense Guidelines attached hereto as Exhibit 3 and will be invoiced on a monthly basis in arrears and due within thirty (30) days from the date of invoice. III) The Contract Amount is the amount of Funds that Customer has allocated for this agreement, and may not be exceeded unless Customer allocates additional funds based upon approved written change orders. The Contract Amount is $1,264,182.00. Page 4 of 29 SPS Maintenance 7/1/2010 iv) Superion's Services is required to perform based upon the details of Exhibit 6 - Project Statement of Work (SOW). v) The complete installation of the Proposed System is contingent on budgetary funding from the annual Customer budget. Funding may be allocated in phases over several fiscal years. Customer believes that sufficient funds can be obtained to pay all amounts due Superion throughout the term of this Agreement and hereby covenants and agrees that it will make appropriate requests for budget appropriations for the fiscal years in amounts as specified herein. Customer further agrees that said funds, once appropriated, will be maintained and expended for the expressed purpose of acquiring from Superion the licenses and services set forth herein. In the event sufficient funds are not appropriated, not budgeted or not otherwise legally available, Customer shall immediately notify Superion of such occurrence and Superion will respond with a proclamation that the Agreement, or the appropriate executory portions thereof, is terminated. Should there be any premature termination of this Agreement, Customer shall be responsible to pay a) for any services delivered by Superion prior to the notice b) support service fees due and (:) for all software which has been delivered and accepted. vi; Given the nature of the services performed, Customer has the responsibility to inform Superion F ublic Services of any deficiencies in the work and/or satisfaction issues, or any other questions or issues. For this reason, Customer will have thirty (30) days from invoice date to notify Superion of any dispute or issue concerning the services billed on that invoice. Thereafter, the invoice will be considered non - disputable. E uch notice shall provide sufficient detail so as to allow Superion to duplicate the error. SEE SECTION 20 — Service Resolution Incentive. b) Taxer,_ Customer is responsible for paying all taxes (except for taxes based on Su..oerion's net income or capital stock) relating to this Agreement, the Software, any services provided or payments made under this Agreement. Applicable tax amounts (if any) are NOS included in the fees set forth in this Agreement. If Customer is exempt from the payment of any such taxes, Customer must provide Superion with a valid tax exemption certificate; otherwise, absent proof of Custorner's direct payment of such tax amounts to the applicable taxing authority, Superion will invoice Customer for and Customer will pay to Superion all such tax amounts. c) Scheduled Resource Chances: For training and on -site project management sessions which are cancelled at the request of Customer within fourteen (14) days of the scheduled start date, Customer is responsible for entire price of the training or on -site project management plus incurred expenses. 8. Acceptance of Services; Final Payment Milestone: The following terms apply with regard to payment of the Final Milestone as identified in the Project Milestone and Payment Schedule Supplement: a) i) Customer will use a two stage acceptance process to accept the final completion of Services. The first stage "Conditional Acceptance" will occur when the system (or portion thereof) goes live. Customer will have 45 days to conduct testing prior to go live. ii) Customer will have a 90 day pE.riod after Conditional Acceptance to "Live Test" the system (or portion thereof). Live Testing is Customer's opportunity to verify that the Services have been completed in accordance with the provisions of this Agreement and that the Services were performed in accordance with specifications included in the Business Process Reviews and the Statement of Work. iii) If, after the Live Testing, the Services have been completed in accordance with the Agreement and Business Process Reviews and the Statement of Work; Customer will issue "Final Acceptance of Services." The 90-day time frame for Final Acceptance restarts if Services issues Page 5 of 29 SPS Maintenance 7/1/2010 are found in the Live Test. The final acceptance period will restart on the date the problem is certified by Superion as being re -performed and fixed. iv) 100% of the payment identified in the Milestone Billing Schedule Exhibit 2 — Schedule B specifically Final Milestone representing 10% of the total Services billing shall be paid upon Final Acceptance of Services. 9. Limited Warrantv. Disclaimer of Warrantv and Election of Remedies. a) Limited Software Warranty by Superion and Remedy For Breach. For each Component System, Superion warrants to Customerthat, fora period of twelve (12) months afterthe Delivery Date, the Baseline Component System, as used by Customer on the Equipment for its own, non-commercial computing operations, will operate without 9efects. For each Defect, Superion, as soon as reasonably practicable and at its own expense, will provids Customer with an avoidance procedure for or a correction of the Defect. If, despite its reasonable efforts, Superion is unable to provide Customer with an avoidance procedure for or a correction of a Defect, then, subject to the limitations set forth in Section 18 of this Agreement, Customer may pursue ks remedy at law to recover direct damages resulting from the breach of this limited warranty. These remedies are exclusive and are in lieu of all other remedies, and Superion's sole obligations for breach of this limited warranty are contained in this Section 9(a). b) Disclaimer of Warranty. The limited Jiarranty in Section 9(a) is made to Customer exclusively and is in lieu of all other warranties. SUPERION MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR THE SOFTWARE, IN WHOLE OR IN PART. SUPERION EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY -AND OF FITNESS FOR A PARTICULAR PURPOSE. SUPERION EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE, IN WHOLE OR IN PART, WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATIBLE: WITH ANY HARDWARE OR SOFTWARE OTHER THAN THE EQUIPMENT. CUSTOMER WAIVES ANY CLAIM THAT THE LIMITED WARRANTY SET FORTH IN SECTION 9(A) OR THE REMEDY FOIE BREACH OF SUCH LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. c) Abrogation of Limited Warranty. The limited warranty in Section 9(a) will be null and void if: 6) anyone (including Customer) other than Superion modifies the Baseline Component System; or (ii) Customer does not implement changes that Superion provides to correct or improve the Baseline Component System. If despite any modification of the Component System, Superion can replicate the reported problem in the Baseline Component System as if the problem were a Defect, then Superion will nonetheless provide Customer with an avoidance procedure for or a correction of that reported problem for use in the Baseline Component System as though the reported problem were a Defect. d) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 9 AND 18 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER CUSTOMER HAS ACCEPTED ANY SOFTWARE OR SERVICE UNDER THIS AGREEMENT. 10. Confidential Information. Except as otherwise permitted under this Agreement, the Recipient will not knowingly disclose to any third party, or make any use of the Discloser's Confidential Information. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser's Confidential Information that it uses to maintain the confidentiality of its own. Confidential Information of equal importance. Except in connection with the Software and any software provided with the Software, the non -disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Recipient's receipt of that item, However, Customer's obligations to maintain both the Software and any software provided with the Software as confidential will survive in perpetuity. Page 6 of 29 SPS Maintenance 7/112010 11. Indemnity by Superion. Superion will defend, indemnify and hold Customer harmless from and against any loss, cost and expense that Customer incurs because of a claim that use of a Baseline Component System infringes any United States copyright of others. Superion's obligations under this indemnification are expressly conditioned on the following: (1) Customer must promptly notify Superion of any such claim; (ii) Customer must in writing grant Superion sole control of the defense of any such claim and of all negotiations for its settlement or compromise (if Customer chooses to represent its own interests in any such action, Customer may do so at its own expense, but such representation must not prejudice Superion's right to control the defense of the claim and negotiate its settlement or compromise); (iii) Customer must cooperate with Superion to facilitate the settlement or defense of the claim; (iv) the claim must not arise from modifications or (with the express exception of the other Component Systems and third party hardware and software specified by Superion in writing as necessary for use with the Software) from the use or combination of products provided by Superion with items provided by Customer or others. If any Component System is, or in Superion's opinion is likely to become, the subject of a United States copyright infringement claim, then Superion, at its sole option and expense, will either: (A) obtain for Customer the right to continue using the Component System under the terms of this Agreement; (B) replace the Component System with products that are substantially equivalent in function, or modify the Component System so that it becomes non -infringing and substantially equivalent in function; or (C) refund to Customer the portion of the license fee paid to Superion for the Component System(s) giving rise to the infringement claim, less a charge for use by Customer based on straight line depreciation assuming a useful life of five (5) years. THE FOREGOING IS SuPERION'S EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 12. Term and Termination. a) Right of Termination. A party has the right to terminate this Agreement if the other party breaches a material provision of this Agreement. Either party has the right to terminate this Agreement at any time while an event or condition giving rise to the right of termination exists. To terminate this Agreement, the party seeking termination must give the other Marty notice that describes the event or condition of termination in reasonable detail. From the date of -its receipt of that notice, the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to the right of termination is not cured within that period, this Agreement will automatically be deemed terminated at the end of that pF:riod. However, notice to Superion of a suspected Defect will not constitute a notice of termination of this Agreement. b) Effect of Termination. Upon termination of this Agreement by either party, Customer will promptly return to Superion or (at Superion's request) will destroy all copies of the Software, and will certify to Superion in writing, over the signature of a duly authorized representative of Customer, that it has done so. c) Survival of Obligations. All obligations relating to non-use and non -disclosure of Confidential Information and indemnity will survive termination of this Agreement. d) Termination Without Prejudice to Other Rights and Remedies. Termination of this Agreement will be without prejudice to the terminating party's other rights and remedies pursuant to this Agreement. e) Disentanglement. In connection with any expiration or termination of the Term of this Agreement or of the provision of any of the Services provided hereunder, Superion shall, at Customer's request, assist Customer in accomplishing a complete and timely transition from Superion to Customer or to any replacement providers or New Vendor (NV) designated by Customer, of the Services being terminated (a "disentanglement'), in a manner calculated to minimize impact on the Services or any other services provided by third parties. Superion shall provide the Customer and the NV and otherwise take steps reasonably required to assist Customer in effecting a complete and timely Disentanglement. Superion shall provide Customer and NV with information regarding the Services or as is otherwise needed for Disentanglement, subject to NV agreeing to maintain the confidentiality of Superion Confidential Information. Superion shall provide for the prompt and orderly conclusion of all work, as Customer may direct, including completion or partial completion of projects and other measures to assure an orderly Page 7 of 29 SPS Maintenance 7/1/2010 transition to Customer or Customer's NV. Should Customer require Disentanglement services, Superion shall provide Customer with a quote for Disentanglement services at Superion's then standard rates, or at hourly rates agreed upon in the contract for each Superion Personnel that is to perform such Disentanglement services as requested by Customer. Superion shall provide any Disentanglement services as the City reasonably requests for a period of one (1) year. This paragraph shall not be interpreted to require Superion or to permit Customer to disclose to any NV any of the Confidential Information of Superion without prior written specific consent. 13. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: Delivered personally; sent by United States registered or certified mail, return receipt requested; transmitted by facsimile confirmed by United States first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the first page of this Agreement, or to such other place as the party may subsequently designate for its receipt of notices.. 14. Force Maleure. Neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God acts of war, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental. and judicial action not the fault of the party failing or delaying in performance. 15. Assignment. Neither party may assign any of its rights or obligations under this Agreement, and any attempt at such assignment will be void without the prior written consent of the other party. For purposes of this Agreement, "assignment" will include use of the Software for benefit of any third party to a merger, acquisition and/or other consolidation by, with or of Customer, including any new or surviving entity that results from such merger, acquisition and/or other consolidation. However, the following will not be considered "assignments" for purposes of this Agreement: Superion's assignment of this Agreement or.of any Superion rights under this Agreement to Superion's successor by merger or consolidation or to any person or entity that acquires all or substantially all of its capital stock or assets; and Superion's a:,signWient of this Agreement to any person or entity to which Superion transfer:; any of its rights in the Software. 16. No Waiver. A party's failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach. 17. Choice of Law: Severability. This Agreement will be governed by and construed under the laws of the State of Florida, without reference to the choice of law's provisions thereof. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect. 18. LIMITATIONS OF LIABILITY. A) LIMITED LIABILITY OF SUPERION. SUPERION'S LIABILITY IN CONNECTION WITH THE SOFTWARE, ANY SERVICES, THIS LICENSE OR ANY OTHER MATTER RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEE THAT CUSTOMER ACTUALLY PAID TO SUPERION (OR, IF NO DISCRETE FEE IS IDENTIFIED IN EXHIBIT 1, THE FEE REASONABLY ASCRIBED BY SUPERION) FOR THE COMPONENT SYSTEM OR SERVICES GIVING RISE TO THE LIABILITY. B) EXCLUSION OF DAMAGES. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL SUPERION BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUPERION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. Page 8 of 29 SPS Maintenance 71l /2010 C) BASIS OF THE BARGAIN. CUSTOMER ACKNOWLEDGES THAT SUPERION HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. 19. Dispute Resolution Mechanism. The parties adopt the following multi -tiered dispute resolution mechanism for resolving disputes between them: a) Level 1: Disputes, disagreements, and business issues shall be referred to the Project Managers who shall address and resolve the matter within 48 hours of the request being made by either party. b) Level 2: If the Project Managers are unable to resolve any matter within 48 hours, it shall be referred to the President of Superion or designee, and to the City Manager of Customer, or designee. They shall gather facts concerning the matter, explere alternatives and attempt to resolve the matter by agreement. c) Level 3: If President of Superion and City[Manager of Customer are not able to agree, either party may institute a legal proceeding in Broward County, Florida to resolve the issue. d) The foregoing shall apply, but not be limited to, the following types of disputes: i. Disputes about this agreement, Exhibits, the Statement of Work, including disputes as to the formation, interpretation, performance, and breach of these documents; and ii. Disputes regarding warranty claims, employment related claims, and indemnity claims; and iii. All other disputes betweer. the parties, regardless of subject matter. 20. Service Resolution Incentive. For the period commencing on the Execution Date and expiring upon Go -Live of the Component Systems identified in Exhibit 2 - Schedule A, if Superion fails to meet the expected delivery date of a Service;, such expected delivery date being identified in the Statement of Work - Exhibit 6 (SOW) and is subsequent to- the Execution Date, due solely to the fault of Superion which has not otherwise been excused nor agreed to by Customer (the "Delay"), Customer's sole and exclusive remedy in relation to such failure shall be the applicable one-time credits specified as follows: For each full calendar day Superion causes a Delay, Customer shall receive a one-time credit against Customer's Maintenance Fee invoice equal to the daily pro -rated amount based on one (1) months' Maintenance Fees described in Exhibit 2 - Schedule A for those Component Systems affected by the Delay for the number of days delayed up to a maximum of 180 calendar days. In no event shall Superion be obliged to provide any refund in relation to any credit, but rather the credit shall be applied to the next Maintenance Fee invoice due to the Customer following the Delay. Customer must notify Superion in writing of the occurrence of any Delay triggering a credit. Any credit entitlement that is not reported to Superion within three (3) months of its availability shall no longer be available and the Customer will be deemed to have waived any rights in relation thereto and (for the avoidance of doubt) Superion's failure to meet the relevant Service resolution commitment. Customer shall not be entitled to offset any Maintenance Fee payments nor withhold Maintenance Fee payments on account of a pending credit. Customer shall not be eligible for credits for any period where Customer is more than thirty (30) days past due on their account. The parties agree that (i) it would be impractical and extremely difficult to fix the actual damages to Customer that may proximately result from the failure to meet the expected delivery date of a Service to which the credits relate, (ii) such credits are liquidated damages and not a penalty, (iii) such credits Page 9 of 29 SPS Maintenance 7/1/2010 constitute a reasonable remedy that is not disproportionate to the presumed damage caused by the failure of Superion to meet the expected delivery date of a Service. 21. Chan-ge Orders: Following the Execution Date should the parties desire to make changes to the products or services being delivered in Exhibit 2 — Schedule A, said changes shall be made pursuant to Section 2.1.15 of the SOW. 22. Insurance Requirements. During the performance of the services under this Agreement, Superion shall maintain the following insurance coverages, shall evidence coverage via a certificate of insurance and such policies shall be written by an insurance company authorized to do business in Florida. (a) Commercial General Liability insurance covering claims for personal injury and property damage, with limits of not less than US$1,000,000 per occurrence; (t) Automobile Liability: shall procure and maintain, for the life of the Agreement, • Automobile Liability Insurance with limits of not less than US$1,000,000 per occurrence; (c) Workers Compensation coverage as required by the statutes of the jurisdiction in which the services are being performed covering all Personnel employed by Superion in the performance of their duties who are required to be covered by the statutes of the applicable jurisdiction; and (d) Errors and Omissions insurance with a reputable insurance company, with limits of not less than US$1,000,00(1. Upon the reasonable request of Customer, Superion shall furnish Customer with a certificate of insurance as specified in this Agreement. Maintenance of insurance as specified in this Agreement shall in no way be interpreted as relieving or increasing Superion's responsibilities or liabilities under this Agreement; and Superion may carry, at its own expense, such additional insurance as it deems necessary, including self- insurance. Customer shall be named as an additional insured for Commercial3eneral Liability coverage. Consultant shall not commence work under this Agreement until all insurance required as stated herein has been obtained and evidenced via a certificate of insurance and such insurance has been approved by Customer. 23. Independent Contractor This Agreement does not create an employee/employer relationship between the Parties. It is the intent of the Parties that Superion is an independent contractor under this Agreement and not the Customer's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Worker's Compensation Act, and the State Unemployment Insurance law. Superion shall retain sole and absolute discretion in the judgment of the manner and means of carrying out Superion's activities and responsibilities hereunder provided, further that administrative procedures applicable to services rendered under this Agreement shall be those of Superion, which policies of Superion shall not conflict with City, State, or United States policies, rules or regulations relating to the use of Superior's funds provided for herein. Superion agrees that it is a separate and independent enterprise from the Customer, that it had full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. This Agreement shall not be construed as creating any joint employment relationship between Superion and the Customer and the Customer will not be liable for any obligation incurred by Superion, including but not limited to unpaid minimum wages and/or overtime premiums. Page 10 of 29 SPS Maintenance 7/1/2010 24.Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document which may be issued by Customer in connection with this Agreement does not modify this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. Page 11 of 29 SPS Maintenance 7/1/2010 EXHIBIT 1 Customer: City of Tamarac, FL Delivery Address: 10101 State Street Tamarac, FL 33321 SOFTWARE: See Exhibit 2 - Schedule A Software Notes: 1. Any Interfaces identified in Exhibit 2 - Schedule A are nterfaces only. Customer shall be responsible for obtaining the applicable software, hardware and system software from the appropriate third party vendor. 2. Source Code Escrow will be invoiced annually by Superion. SERVICES: See Exhibit 2 - Schedule A Services Notes: 1. Pricing is a good faith estimate based on the information available to Superion at the time of execution of this Agreement. The total amount that Customer will pay for these services (i.e., the "TOTAL SERVICES FEE") will vary based on the actual number of hours of services required to complete the services. If required, additional services will be provided on a time and materials basis at hourly rates equal to Superion's then -current list price rates for the services at issue. 2. Reimbursable expenses are additions; and will be billed monthly as Superion renders the services. THIRD PARTY PRODUCTS: See Exhibit 2 - Schedule A Third Party Product Notes: 1. Actual shipping charges are additional and will be due upon delivery. Exhibit 1 Notes: 1. Annual Subscription Fee: The initial annual subscription term for any subscription product(s) listed above shall commence on the Execution Date of this Agreement and extend for a period of one (1) year. Thereafter, the subscription terms shall automatically renew for successive one (1) year terms, unless either party gives the other part written notice of non -renewal at least sixty (60) days prior to expiration of the then -current term. The then -current fee will be specified by Superon in an annual invoice to Customer thirty (30) days prior to the expiration of then -current annual period. 2. APPLICABLE TAXES ARE NOT INCLUDED IN THIS EXHIBIT 1, AND, IF APPLICABLE, WILL BE ADDED TO THE AMOUNT IN THE PAYMENT INVOICE(S) BEING SENT SEPARATELY TO THE CUSTOMER. Page 12 of 29 SPS Maintenance 7/1/2010 The amounts noted above shall be payable as follows: License Fee: 100% on the Execution Date. Initial Annual Subscription Fee: 100% on the Execution Date. Source Code Escrow Fee: 100% on the Execution Date Professional Services: Billed in accordance with the Milestone Billing Schedule Exhibit 2 —Schedule B Third Party Products Software Fee: 100% on the Execution Date Third Party Products Initial Annual Maintenance: The initial annual maintenance fee is included it the License fee. The Annual Maintenance Fee amount shown in Exhibit 2 - Schedule A is for the second year of Third Party Product annual maintenance and is due prior to commencement of the second annual term. Annual Maintenance Fees for subsequent terms are subject to change and wH be invoiced by and paid directly to Superion. EQUIPMENT: Host(s) or client server configuration(s) and/or combinations of host(s) and client server configuration(s) within the United States of America for which Superion supports the Software. Customer acknowledges that certain Component Systems of the Software may require specific host or client configurations. Customer, as soon as reasonably practicable, will provide a detailed written description of the Equipment so that Superion can confirm that it is a configuration on which Superion supports use of the Software. NOTICE: To use any of the Software, Customer must also obtain, install on the Equipment and maintain Superion-supported versions of certain software products and software/hardu,tare peripherals. By this notice, Superion is advising Customer that Customer should consult w.:th its Superion Professional Services representative to obtain a written listing of such necessary software products and software/hardware peripherals. Page 13 of 29 SPS Maintenance 7/1/2010 Exhibit 2 - Schedule A Component Systems and Improvements City Part # Component System License Fee Improvement Fees (Initial Contract Year) Annual Subscription Fees (Initial) ONESolution Finacials Suite 1 OS -Fin ONESolution Financials $ 156,400.00 $ 25,024.00 1 OS-HP-PY ONESolution Human Resources/Payroll 87,700.00 $ 14,032.00 1 OS-FDN ONESolution Foundation 8,800.00 $ 1,408.00 1 OS-FIN-CDD ONESolution Click, Drag and Drill 4,200.00 $ 672.00 1 OS-K9-3 ONESolution Click2Gov3 Vendor Management 2,083.00 $ 665.00 1 OS-KR-3 ONESolution CIIck2Gov3 Accounts Receivable 2,488.00 $ 795.00 TRAKIT Community Development Suite 1 TRAK-AVOLVE _ TRAKiTAPI for ProjectDox 10,000.00 $ 2,000.00 1 TRAK-CC-ETRAK eTRAKiT Credit Card API �_ 5,000.00 $ 1,000.00 1 TRAK-CC ETRAK TRAKiT Credit Card Reader Interface 7,500.00 $ 1,500.00 1 TRAKiT CD -IF TRAKIT Cash Drawer Interface 4,000.00 $ 800.00 20 TRAK-COMMDEV-UL TRAKiT9 Community Development Suite User License 90,000.00 $ 18,000.00 1 TRAK-EC-ETRAK eTRAKiTeCheckAPI 5,000.00 $ 1,000.00 1 TRAK-ENFLIB TRAKiT Enforcement Library 1,000.00 $ 200.00 1 TRAKiT--CD-IF eTRAKiT Citizen Portal 20,000.00 $ 4,000.00 1 TRAK-GISADV TRAKiT GIS Advanced Engine 17,500.00 $ 3,600.00 1 TRAK- ITTRAKIT iTRAKiT Suite 30,000.00 $ 6,000.00 1 TRAK-IVR-IF TRAKIT API for Selectron IVR 7,500.00 $ 1,500.00 1 TRAK-PLNLIB TRAKiT Plan Correction Library 1,000.00 $ 200.00 1 TRAK-PMTLIB TRAKiT Permit Form Library 2,000.00 $ 400.00 1 TRAK-GREGLIB TRAKIT Regulatory License Ubrar'L 2,000.00 $ 400.00 5 TRAK-REGSUITEUL TRAKiT9 Regulatory Licensing Suite User License 15,000.00 $ 3,000.00 1 TRAK-SIGNPAD TRAKiTSigniture Pad 5,000.00 $ 1,000.00 1 TRAK-CHIC CivicTRAK $ 12,000.00 ONESolution Work Manageme:it 1 OS -LAND ONESolution Land Managemen. 11,400.00 $ 1,824.00 30 OS m.Client ONESolution Mobile Client 37,500.00 $ 6,000.00 1 OS m.Server ONESolution Mobile Server Framework 3.200.00 $ 512.00 1 OS m.Tasks ONESolution Mobile Tasks 1,950.00 $ 312.00 1 OS -ASSET ONESolution Asset Maintenance 9,700.00 $ 1,552.00 1 OS-CMMS ONESolution CMMS: Work Orders/Task Management 20,200.00 $ 3,232.00 1 OS-CRM ONESolution Customer Relationship Management (CRM) 12,000.00 $ 1,920.00 1 OS -FLEET ONESution CMMS: Work Orders/Task Management w/Fleet 45,000.00 $ 720.00 Subtotal $ 625,121.00 $ 103,168.00 $ 12,000.00 Discount $ 644,046.00 Total after Discount $ 81,075.00 $ 103,168.00 $ 12,000.00 Page 14 of 29 SPS Maintenance 7/112010 Exhibit 2 - Schedule B Third Party Products Qty. Part# Third Parry Products Software Initial Annual Maintenance 1 COGNOS-05 Cognos Bl: Caf'e $ 2,960.00 $ 600.00 1 COGNOS:DM Cognos DM: Base Bundle $ 29,480.00 $ 4.716.80 1 COGNOS-DM-USER5 Cognos DM: Standard User Bundle $ 14,570.00 $ 2,740.00 1 OS-FEC-NL ONESolution Financial Enterprise Core-Na%iLine $ 45,508.00 $ 7,281.28 Third Party Products Totals $ 92,618.00 J $ 16,338.08 SERVICES AND Milestone Billing Schedule Payment Milestone % of Total Description Deliverable SOW PageNumber Milestone Payment Amount Phase I Finance -Deliverables described in section 4.10 in SOW 1 10.00% Includes Project Charter, Project Kick off & Communication Plan forall Phases 1.1, 5,1.2 48,56,49 e24,472.33 2 7.00% Project Work Plan/Schedule for Phase1 2 52 $r7,130.63 3 7.00% Risk Plan and Registerand Issues Register. Milestone consists of completion of initial documents with identified risks and Issues. 1.3,1.4' 49,50 $17,130.63 4 6.00% Phase 1 -Completed Configuration Workbook 7.1 62 $14,683.40 5 7.00% Software Installed 4.1,4.E 54,56 $17,130.63 6 7.00% Conversion Phase 1 10, 70 $17,130.63 7 6.00% End UserTralning Plan 16.1, 81 $14,683.40 8 6.00% Core Team Process Testing 13 76 $14,683.40 9 6.00% Core Team Training Phase 1 12 75 $14,683.40 10 6.00% Integration and Parallel Testing Phase 1 15.2 79 $14,683.40 11 6.00% User Verification Testing (UVT) Phase 1 15.3 80 $14,683.40 12 6.00% Go Live CutoverPlan—Phase 1 17 84 $14,683.40 13 6.00% Go Live Declaration Letter —Phase 1 18.1 85 $14,683.40 14 6.00% Go Live CAFR Constructor -City using ONESolution to produce annual CAFR Appendix 1 117 $14,683.40 15 3.00% Go Live Budget Book - City using ONESolution to produce annual Budget Appendix 1 117 $7,341.70 16 5.00% Phase I Close Out 19 87 $12,236.17 100% 1 Phase 1 Subtotal: I 1 $244,723.33 Page 16 of 29 SPS Maintenance 7/1/2010 Phase II HR/PY & Work Management -Deliverables described in section 4.10 In SOW 17 10.00% Project Work Plan/Schedule for Phase 2 2 52 $41,268.33 18 10.00% Phase 2-Completed Configuration Workbook 7.1 62 $41,268.33 19 10.00% Conversion Phase 2 10 70 $41,268.33 20 9.00% End User Training Plan 16.1 81 $37,141.50 21 9.00% Core Project Team Process Testing 13 76 $37,141.50 22 10.00% Core TeamTraining Phase 2 12 75 $41,268.33 23 9.00% Integration and Parallel Testing Phase 2 15.2 79 $37,141.50 24 10.00% User Verification Testing (UVT) Phase 2 15.3 80 $41,268.33 25 10.00% Go Live CutoverPtan—Phase 2 17 84 $41,268.33 26 8.00% Go Live Decli ratl.)n Letter —Phase 2 18.1 85 $33,014.67 27 5.00% Phase 2Close Out 19 87 $20,634.17 100% Phase II Subtotal: $412,683.33 Phase III Community Deve(opment/TRAKiT - Deliverables described in s(=ctlon 5.13 of SOW 28 10% Project Time11ne Sign -Off for Phase 3 6 110 $16,999.53 29 10% Kick -Off Meeting Phase 3 Completed 15 111 $16,999.53 30 10% GeoTRAK Workbook, Initial Yorms/Rerports Scope, Project Workbook anC Final Data Mapping Document Sign -Off:: 32,33,34, 35 111,122 $16,999.53 31 10% Initial Delivery 39 113 $16,999.53 32 1(j% PtwerUsersTrained 41 113 $16,999,53 33 1.1)% 3rd Delivery 54 114 $16.999.53 34 11)% Testing Ends Sign Off 63 115 $16,999.53 35 10% End User Training Complete 66 115 $16,999.53 36 10% Go Live 69 115 $16,999.53 37 10% Phase 3 Go Live Review 71 115 $16,999.53 100% Phase III Subtotal: $169,99S.33 ism10% Project Final Milestone Phase i Milestone Payments $91,933.60 S244,723 Phase 2 Milestone Payments $412 fa Phase 3 Milestone Payments k69,995 Final Milestone $u,934 Total Milestones S919.336 Estimated Travel (billed as Incurred) $199,183 Report Development (billed as Incurred) $233,280 I Integration/ interface (billed as Incurred) $115,200 Web Forms (bilied as incurred) $75,200 Pcard Conversion (billasIncurred) $8,000 Total Services with Estimated Travel and Reporting $1,550,198 Page 16 of 29 SPS Maintenance 7/1/2010 No Text Exhibit 3 SUPERION TRAVEL EXPENSE GUIDELINES Superion will adhere to the following guidelines when incurring travel expenses: All arrangements for travel are to be made through the Superion Corporate Travel Agent unless other arrangements have been made with the Customer and are documented in writing. AIR TRAVEL — Superion will use the least expensive class of service available with a minimum of seven (7) day, maximum of thirty (30) day, advance purchase. Upon request, Superion shall provide the travel itinerary as the receipt for reimbursement of the air fare and any fees. Fees not listed on the itinerary will require a receipt for reimbursement. Trips fewer than 250 miles round are considered local. Unless a flight has been otherwise approved by the Customer, Customer will reimburse the current IRS approved mileage rate for all local trips. LODGING —Reasonable lodging accommodations are reimbursable, up to $125 per night. If, depending on the city, reasonable accommodations cannot be secured for $125 per night, Customer's prior approval will be required. Upon request by Customer, the hotel receipt received upon departure will be submitted for reimbursement. All food items, movies, and phone/internet charges are not reimbursable. RENTAL CAR — Compactor Intermediate cars will be required unless there are three or more Superion employees sharing the car in which case the use of a full size car is authorized. Gas is reimbursable however pre -paid gas purchases will not be authorized and all rental cars are to be returned with a full tank of gas. Upon request, receipts for car rental and gas purchases will be Submitted to Customer. Superion shall decline all rental car insurance offered by the car rental agency a, staff nembers will be covered under the Superion auto insurance policy. Fines for traffic violations, are rot reimbursable expenses. OTHER TRANSPORTATION — Superion staff members are expected to use the most economical means for traveling to and from the airport (Airport bus, hotel shuttle service). Airport taxi or mileage for the employee's personal vehicle (per IRS mileage guidelines) are reimbursable if necessary. Upon request, receipt(s) for the taxi will be submitted to Customer. Proof of mileage may be required and may be documented by a readily available electronic mapping service. The mileage rate will be the then -current IRS mileage guideline rate (subject to change with any change in IRS guidelines). OTHER BUSINESS EXPENSES — Parking at the airport is reimbursable. Tolls to and from the airport and while traveling at the client site are reimbursable. Tipping on cab fare exceeding 15% is not reimbursable. Porter tips are reimbursable, not exceeding $1.00 per bag. Laundry is reimbursable for hotel stays longer than four days while at the client site. With the exception of tips, receipts shall be provided to Customer upon request for all of the aforementioned items. MEALS $52.00 per day Standard Per Diem $10.40 — Breakfast $13.00 — Lunch $28.60 — Dinner Page 18 of 29 SPS Maintenance 711/2010 Exhibit 4 THIRD PARTY SOFTWARE SUPPLEMENT 1.1 Grant of Third Party Licenses. Where applicable, Superion grants to Customer a personal, non- transferable, non-exclusive, limited -scope sublicense to use, in accordance with the license, use and confidentiality restrictions and other provisions of this Agreement, the third party software set forth on Exhibit 1 ("Third Party Software Products") subject to the following additional conditions: (i) the Third Party Product shall be used only in conjunction with any permissible use of the Component System software specifically authorized hereunder, and (ii) the Third Party Products shall be used only in accordance with the Third Party Products documentation. 1.2. Third Party Products. During the term of this Agreement, Superion shall use reasonable efforts to provide Customer the benefit of all indemnities and warranties granted to Superion by the licensor(s) of the Third Party Products, to the extent possible without additional cost to Superion, as and if permitted by Superion's agreement with the licensor of the Third Party Products,and to the extent such warranties and indemnities pertain to Customer's use of the Third Party Products .hereunder. In the event of any defect in any Third Party Products supplied by Superion, Superion will use comrriercially reasonable efforts to replace or correct the Third Party Products without charge, unless it has been damaged or corrupted after supply by Superion (including, but not limited to, damage caused by incorrect use, incorrect voltage or attempts to modify the Software or Third Party Products). If such damage or corruption has occurred after supply by Superion, Superion reserves the right to refuse to replace or correct the Third Party Products or to impose charges for so doing. Provided that Superion complies with this provision, it shall face no further liability with respect to any defect in any Third Party Products. NOS SUPPLEME 1. Additional Definitions. "Cognos °Component Systems" means any of the software provided to Superion by Cognos Corporation'(`°Cognos") and identified under the name "Cognos" in Exhibit 2 — Schedule B. 2. Ownership. Cognos owns the Cognos Component Systems. 3. Restrictions on Use of Cognos Component Systems. Customer's use of the Cognos Component System(s) is subject to the following additional terms and conditions: (a) Customer has the right to use the Cognos Component System(s) only in Object Code form, and only with the Superion Licensed Software. (b) Customer acknowledges that the Cognos Component System(s) are proprietary to Cognos and are supplied by Superion under license from Cognos. Title to the Cognos Component System(s) shall at all times remain vested in Cognos or its designated successor. Except for the right of Ise that is expressly provided to Customer under the Agreement, no right, title or interest in or to the Cognos Component System(s) is granted to Customer; (c) Customer agrees that Cognos shall not be liable for any damages, whether direct, indirect, incidental, special, or consequential, arising from the Customer's use of the Cognos Component System(s) or related materials; Page 19 of 29 SPS Maintenance 7/1/2010 (d) Customer acknowledges and agrees that Cognos is a third party beneficiary of this Agreement; (e) Customer acknowledges and understands that the Cognos Component System(s) may only be used by the number of users for the specific functions for which the license has been granted, as otherwise specified in Exhibit 1; and (f) Customer acknowledges and understands that it is licensing the Cognos Component System(s) on a "restricted use" basis. "Restricted use" means the use of the Cognos Component System(s) only with the Component Systems identified Exhibit 2, Schedule A and to the extent licensed therein. Such restricted use shall include Customer's right to extract, ;analyze, and report data from disparate systems, provided that such data is extracted, analyzed and reported by the software applications system(s) set forth in Exhibit 2, Schedule A. (g) Customer shall be provided with the limited, thirty (30) day warranty From Cognos as set forth below. Cognos warrants to Customer that (a) for a period of thirty (30) days following the initial delivery/download/access of the Cognos Component System(s) to or by Customer, the Cognos Component System(s) will perform in accordance with its related documentation, and (b) the madia on which the Cognos Component System(s) is provided, if applicable, i free from defects in materials and workmanship under normal use. Subject to applicable law, all other warranties, express or implied, or otherwise, are excluded. Customer's only remedy against Cognos if this warranty is breached will be, at the option of Cognos, (a) to repair or replace the Cognos Component System(s) or (b) to refund the amounts paid in respect of the defect.ve Cognos Component System(s). This remedy is void if Customer misuses the Cognos Component System(s) contrary to its related documentation. Page 20 of 29 SPS Maintenance 7/1 /2010 Exhibit 5 PREFERRED BENEFICIARY ACCEPTANCE FORM Depositor, Preferred Beneficiary and Iron Mountain Intellectual Property Management, Inc. ("IMIPM"), hereby acknowledge that City of Tamarac, FL is the Preferred Beneficiary referred to in the Master Preferred Escrow Agreement effective June 16, 2015 with IMIPM as the escrow agent and Superion, LLC as successors to SunGard Public Sector LLC as the Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of such Agreement. Depositor hereby enrolls Preferred Beneficiary to the following account(s): Account Name Deposit Account Number ONESolution and TRAKiT Notices and communications to Preferred Beneficiary should be addressed to: Attn: Levent Sucuoglu Telephone:954-597-3900 E-mail: Levent.Sucuo lu a,tamarac.org Invoices should be addressed to: Initial and Subsequent Annual Invoices: Superion, LLC Accounting Department 1000 Business Center Drive Lake Mary, FL 32746 Contact: Lisa Neumann, Controller City of Tamarac, FL Superion, LLC Preferr ne epositor Title: n-t-L J C v Date: ~ IMIPM By: Name: Title: Date: Name: Lisa Neumami Title: Controller Date: June 22, 2017 Page 21 of 29 Exhibit 6 PROJECT STATEMENT OF WORK Statement of Work is inserted immediately following this Cover Page. (131 Pages) Page 22 of 29 SPS Maintenance 7/112010 SOFTWARE MAINTENANCE SUPPLEMENT Customer desires that Superion provide Maintenance and Enhancements for and new releases of the Baseline Software identified in Appendix 1 on the terms and conditions contained in this Software Maintenance Supplement (the Maintenance Supplement), and for the Custom Modifications identified in Appendix 1 on the terms and conditions of this Maintenance Supplement. Accordingly, the parties agree as follows: Additional Definitions. "Initial Contract Year" means, with respect to each Base;ine Component System and Custom Modification, each one (1) year period beginning on .:he Execution Date and ending twelve (12) months from the expiration of the Current Legacy Period. "Contract'Year" means, with respect to each Baseline Component System and Custom Modification, each one (1) year period beginning on the expiration of the Initial Contract Year (the "Second Contract Year") and ending one (1) year thereafter, or the anniversary thereof. "Current Legacy Period' means that period expiring September 30, 2017 according to ;he separate written agreement between Customer and Superion under which Superion is providi;ig Customer with maintenance and support services for Superion's Naviline brand software system. "Custom Modification" means a change that Superion has made at Customer's request to any Component System in accordance with a Superion-generated specification, but without any other changes whatsoever by any person or entity. Each Custom Modification for which Superion will provide Customer with Improvements is identified in Appendix 1. "Defect" has the meaning ascribed to that term in the License and Services Agreement to which this Maintenance Supplement is a part of, and further, with regard to each Custom Modification, means a material deviation between the Custom Modification and the Superion-generated specification and documentation for such Custom Modification, and for which Defect Customer has given Superion enough information to enable Superion to replicate the SPS Maintenance 7/1/2010 deviation on a computer configuration that is both comparable to the Equipment and that is under Superion's control. "Enhancements" means general release (as opposed to custom) changes to a Baseline Component System or Custom Modification which increase the functionality of the Baseline Component Systerr or Custom Modification in question. "Improvements" means, collectively, Maintenance, Enhancements and New Releases provided under this Maintenance Supplement. "Maintenance" means using reasonable efforts to provide Customer with avoidance procedures for or corrections of Defects. The hours during which Maintenance will be provided for each Component System, the targeted response times for certain defined categories of Maintenance calls for each Component System and Custom Modification, and other details and procedures (collectively, the "Maintenance Standards") relating to the provision of Maintenance for each Component System and Custom Modification are described in attached Appendix 2. "New Releases" means new editions of a Baseline Component System or Custom Modification, as applicable. "Notification" means a communication to Superion's help desk by means of: (i) Superion's web helpline; (ii) the placement of a telephone call; or (iii) the sending of an e-mail, in each case, in accordance with Superion's then -current policies and procedures for submitting such communications. 2. Services. a) Tvpe:S of Services. During the term of this Maintenance Supplement, Superion will provide Customer wi:h Maintenance for, Enhancements of, and New Releases of each Baseline Component System and each Custom Modification identified in Appendix 1. b) Limitations. All Improvements will be part of the applicable Baseline Component System/Custom Modification, and will be subject to all of the terms and Page 23 of 29 conditions of the License and Services Agreement Supplement to which this Maintenance Supplement is a part of, and this Maintenance Supplement. Superion's obligation to provide Customer with Improvements for Baseline Component Systems owned by parties other than Superion is limited to providing Customer with the Improvements that the applicable third party owner provides to Superion for that Baseline Component System. Customer must provide Superion with such facilities, equipment and support as are reasonably necessary for Superion to perform its obligations under this Maintenance Supplement, including remote access to the Equipment. 3. Payment and Taxes. a) Maintenance Fees. For the Improvements, Customer will pay Superion the amount provided for in Appendix 1 as the "Payment Amount" for the initial Contract Year. For each Contract Year subsequent to the Initial Contract Year, Superion reserves the right to increase the Improvements fees. Fees for Improvements for a Baseline Component System/Custom Modification are due on: the first day of the first month of the Contract Year for that Baseline Component Syste n/Cv^stom Modification. b) Additional Costs. Customer will also reimburse Superion for actual travel and living expenses that Superion incurs in providing Customer with Improvements under this Agreement, with reimbursement to be on an as -incurred basis. Such travel and living expenses will be governed by governed by the Superion Travel Expense Guidelines attached hereto as Exhibit 3 and will be invoiced on a monthly basis in arrears and due within thirty (30) days from the date of invoice. Customer will also reimburse Superion for all charges incurred in connection with accessing Equipment. c) Taxes. Customer is responsible for paying all taxes (except for taxes based on Superion's net income or capital stock) relating to this Maintenance Supplement, the Improvements, any services provided or payments made under this Maintenance Supplement. Applicable tax amounts (if any) are NOT included in the fees set forth in this Maintenance Supplement. If Customer is SPS Maintenance 7/1/2010 exempt from the payment of any such taxes, Customer must provide Superion with a valid tax exemption certificate; otherwise, absent proof of Customer's direct payment of such tax amounts to the applicable taxing authority, Superion will invoice Customer for and Customer will pay to Superion all such tax amounts. d) Late Charges. Customer will pay each Superion invoice by no later than thirty (30) days after receipt. Late payments are subject to a late charge equal to the lesser of: (i) the prime lending rate established from time to time by Citizens Bank, Philadelphia, Pennsylvania plus three percent (3%); or (ii) the highest rate permitted by applicable law. ,4. 1. Term. This Maintenance Supplement will remain in full force and effect throughout the initial ;Contract Year. After the initial Contract Year, this Maintenance Supplement will renew for an additional Contract Year unless, at least six (6) months prior to the expiration of the initial Contract Year, Customer notifies Superion in writing of Customer's intent not to renew the Maintenance Supplement for the second Contract Year. After the second Contract Year, this Maintenance Supplement will automatically be extended for consecutive Contract Years on a year-to- year basis unless either party notifies the other in writing of its intent not to extend this Maintenance Supplement for any particular Baseline Component System/Custom Modification at least six (6) months prior to the expiration of the then -current Contract Year. Upon termination of the Maintenance Supplement with respect to a Component System provided under the Agreement, notwithstanding anything contrary in the Agreement, Customer may continue using the Component System for the reminder of the term of the Agreement; however, (i) Superion will discontinue providing all on -going Maintenance services and Improvements, including Superion's obligations under this Maintenance Supplement, (ii) any Superion warranties under the Agreement and this Maintenance Supplement with respect to the Component System for which Maintenance services are terminated shall cease to apply for the period following termination, and (iii) Superion shall have no liability with respect to Customer's use of the Component System for which Maintenance services are terminated after termination of the Maintenance Supplement Term. 5. Disclaimer of Warranties. Customer agrees and understands that SUPERION MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, WITH REGARD TO ANY IMPROVEMENTS AND/OR ANY OTHER MATTER RELATING TO THIS Page 24 of 29 MAINTENANCE SUPPLEMENT, AND THAT SUPERION EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SUPERION EXPRESSLY DOES NOT WARRANT THAT A COMPONENT SYSTEM, ANY CUSTOM MODIFICATION OR ANY IMPROVEMENTS WILL BE USABLE BY CUSTOMER IF THE COMPONENT SYSTEM OR CUSTOM MODIFICATION HAS BEEN MODIFIED BY ANYONE OTHER THAN SUPERION, OR WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE OTHER. THAN THE EQUIPMENT. 6. Termination. A party has the right to terminate this Maintenance Supplement if the other party breaches a material provision of this Maintenance Supplement. Either party has the right to terminate this Maintenance Supplement at any time while an event or condition giving rise to the right of termination exists. To terminate this Maintenance Supplement, the party seeking termination must give the other party notice that describes the event or condition of termination in reasonable detail. From the date of its receipt of that notice, the other party will have thirty (30) days to cure the breach to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to the right of termination is not cured within that period, then the party seeking to terminate this Maintenance Supplement can effect such termination by providing the other party with a termination notice that specifies the effective SPS Maintenance 7/112010 date of such termination. Termination of this Maintenance Supplement will be without prejudice to the terminating party's other rights and remedies pursuant to this Maintenance Supplement. 7. LIMITATIONS OF LIABILITY. a) LIMITED LIABILITY OF SUPERION. SUPERION'S LIABILITY IN CONNECTION WITH THE IMPROVEMENTS OR ANY OTHER MATTER RELATING TO THIS MAINTENANCE SUPPLEMENT WILL NOT EXCEED THE FEES THAT CUSTOMER ACTUALLY PAID TO SUPERION FOR THE IMPROVEMENTS FOR THE YEAR THAT SUCH. LIABILITY ARISES. b) EXCLUSION OF DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN. FAILS OF ITS ESSENTIAL PURPOSE OR. OTHERWISE, IN NO EVENT WILL SUPERION_BE LIABLE TO .CUSTOMER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUPERION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. C) BASIS OF THE BARGAIN. CUSTOMER ACKNOWLEDGES THAT SUPERION HAS SET ITS FEES AND ENTERED INTO THIS MAINTENANCE SUPPLEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY -AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS MAINTENANCE SUPPLEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. Page 25 of 29 Appendix 1 TO THE SOFTWARE MAINTENANCE SUPPLEMENT CUSTOMER: City of Tamarac, FL INITIAL CONTRACT YEAR: The initial Contract Year begins on the Execution Date and ends twelve (12) months from the expiration of the Current Legacy Period. Each subsequent Contract Year begins on the anniversary of the expiration of the Initial Contract Year. The initial maintenance fee amount indicated for the Software below represents the Improvements fee for the Initial Contract Year. SOFTWARE: See Exhibit 2 - Schedule A Improvements fees for the Initial Contract Year are due thirty (30) days prior to the expiration of the Current Legacy Period. Improvements fees for any Contract Year subsequent to the Initial Contract Year are subject to change and will be specified by Supe(-ion, in an annual invoice. APPLICABLE TAXES ARE NOT INCLUDED IN THIS APPENDIX 1, AND, IF APPLICABLE, WILL BE ADDED TO THE AMOUNT IN THE PAYMENT INVOICE(S) BEING SENT SEPARATELY TO THE CUSTOMER. Improvements Surcharge Imposed In Certain Instances: At the commencement of any Contract Year where Customer is operating on a version of a Baseline Component System that is more than two (2) general release versions behind the then -current release for any Component System, Superion will assess a ten percent (10%) surcharge over and above the Improvements fee for that Contract Year, with such surcharge to be imposed on a. prorated basis for the portion of the Contract Year that Customer remains on a general release version that is more than two (2) releases behind the then - current release of the Component Systems in gljestion. Once Customer is using a release that is no more than two (2) general release versions behind the then -current release, the Improvements surcharge will be removed on a prospective basis, as of the date that Customer is using the release that is no more than two (2) general release versions behind the then -current release. NOTE: Customer and Superion are parties to a separate written agreement ("Legacy Agreement") under which Superion is providing Customer with maintenance and support services for Superior's Naviline brand software system ("Legacy Software'). Superion will continue to provide Customer with maintenance and support services for the Legacy Software in accordance with the terms of and for the fees specified in the Legacy Agreement through the expiration of the one year period that is in effect as of the Execution Date ("Current Legacy Period"). The day of expiration of the Current Legacy Period will be September 30, 2017. Customer's maintenance subscription for the Legacy Software will not renew under the Legacy Agreement for any period after the expiration of the Current Legacy Period. If, during the time in question, Customer is paying for and receiving Improvements for the Baseline Component Systems identified above under this Agreement, then, at the expiration of the Current Legacy Period, Superion will also provide Customer with Defect corrections and avoidance procedures (but not with New Releases of and Enhancements) for the Legacy Software pursuant to this Agreement, at no additional fee, until the earlier of: (a) three (3) years following the expiration of the Current Legacy Period; or (b) the date that Customer begins using all of the Component Systems identified above in a production mode. Page 26 of 29 SPS License 9/13/2011 The pricing provided for above is conditioned upon Customer paying for maintenance and support for the Legacy Software through September 30, 2017. For the period from the Execution Date through September 30, 2017, Superion will provide Customer with Improvements for the Baseline Component Systems and Baseline Customizations identified above in consideration of Customer's payment of the maintenance and support fees for the Legacy Software through the expiration of the Current Legacy Period. The Legacy Software is defined as follows: Product City. Product Code BP Electronic Plan Review Interface 1 EZ Click2Gov-Building Permits 1 K3 Click2Gov-Busines Licenses 1 K6 Click2Gov-Cc!re Module 1 K1 Click2Gov Customer Information System 1 K2 Click2Gov PLjrchasing/Inventory 1 K9 HGE Client Licenses 15 GU Human Resources 1 HR NAM -Applicant Tracking 1 AT NA%Asset Management 11 1 A2 NAM -Automated Fuel System Interface 1 AF NAVI-Building Permits 1 BP NAM -Cash Receipts 1 CR NAVI-Code Enforcement 1 CE NAM-DMS-Document Management Services 1 DX NAVI-Fleet Management 1 FM NAMI GMBAw/Extended Reporting 1 GM NAM -Land Management 1 LX NAM -Occupational Licenses 1 OL NAM-Payroll/Personnel 1 PR NAM-Planning/Engineering 1 PZ NAM -PURCHASING INVENTORY 1 PI NAM-WorkOrders/Fac Mgmt. 1 WF QRep Catalogs for GMJ,MRJ,CRJ,PIJ,PRJ,FMJ,ATJ,LXJ,BPJ,OLJ,CEJ,PZJ,CXJ,WFJ,CPJ 15 CJ QRep Catalogs for HR 1 CJ Rec Trac Interface to Cash Receipts 1 VI Rec Trac Interface to GMBA 1 VG Retrofit Modification Option 23 MOD Selectron-CIS Voice Response Interface 1 V2 Selectron-Credit Card Payment Interface - CIS 1 CY Selectron-Delinquency Call Out Listing Interface 1 DL SunGard Transaction Manager 1 KT Time Keeping Interface - Executime 1 TC Page 27 of 29 SPS License 9/1312011 Remaining applications for continued support under the Legacy Agreement: Product Qty. Product Code Electronic Plan Review 1 EP NAM -Customer Information Systems 1 CX NAM -Accounts Receivable 1 MR NAM -Loans Module 1 LN NAVE -Procurement Card 1 PC Notwithstanding anything to the contrary, Customer shall continue to be responsible for payment of charges associated with the third party products below until receipt of effective written notice of termination for the sul)sequent term. Product Qty. Product code QRep End User 5 CG OnePoint Point of Sale 1 KM QRep Administrator 1 CG QRep Administrator 1 CG BP Interactive Voice Response 1 BV BEA WebLogic Express - Basic 1 BW Edition - LF Page 28 of 29 SPS License 9/1312011 Appendix 2 TO THE SOFTWARE MAINTENANCE SUPPLEMENT Maintenance Standards Hours During Which Superion's Telephone Support Will be Available to Customer in Connection with the Provision of Maintenance: Unless otherwise noted in Exhibit 1, support hours are Monday through Friday, 8:00 A.M. to 5:00 P.M. Customer's Local Time within the continental United States, excluding holidays (" 50). IL Targeted Response Times, With respect to Superion's Maintenance obligations, Superion will use diligent, commercially reasonable efforts to respond to Notifications from Customer relating to the Baseline Component Systems/Custom Modifications identified in Appendix 1 of this Agreement in accordance with the following guidelines with the time period to be measured beginning with the first applicable Superion "Telephone Support" hour occurring after Superion's receipt of the Notification: Priority Description Response Goal* Resolution Goal* Urgent A support issue shall be considered Urgent when it Superion hai a: stated Although resolution I produces a Total System Failure; meaning Superion's goal to respond within times vary depending on Component Systems are not performing a process that 60 minutes of the issue the exact issue and has caused a complete work stoppage. being reported and have customer environment, a resolution plan within Superion has a stated 24 hours. goal to resolve an urgent issue within 24 hours OR provide a resolution plan with urgent issues within 24 hours of the Critica` A support issue shall be considered Critical when a Superion has a stated 2 critical failure in operations occurs; meaning Superion's gwd to respond within issue being reported. Component Systems are not performing a critical two hours of the issue process and prevents the continuation of basic being reported. A resolution plan details operations. Critical problems do not have a workaround. the steps necessary to This classification does not apply to intermittent understand and possibly problems, resolve the issue. Non- A support issue shall be considered Non -Critical when Superion has a stated Critical a non -critical failure in operations occurs; meaning goal to respond within 3 Superion's Component Systems are not performing non- four hours of the issue critical processes, but the system is still usable for its being reported. intended purpose or there is a workaround. Minor A support issue will be considered Minor when the issue Superion has a stated 4 causes minor disruptions in the way tasks are performed, goal to respond within but does not affect workflow or operations. This may 24 hours of the issue include cosmetic issues, general questions, and how to being reported. use certain features of the system. * Measured from the moment a Case number is created. As used herein a "Case number" is created when a) Superion's support representative has been directly contacted by Customer either by phone, email, in person, or through Superion's online support portal, and b) when Superion's support representative assigns a case numberand conveys that case number to the Customer. Customer must provide remote access to its facility using a Superion approved remote access client so that Superion can perform the support obligations andlor services under this Agreement; and will provide appropriate security access and accounts for Superion staff and each session participant. Page 29 of 29 SPS License 9/13/2011