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HomeMy WebLinkAboutPHOENIX PAYMENT SYSTEMS DBA ELECTRONIC PAYMENT EXCHANGE (EPX) - 2013?-----• O = F-Ms/Tre?iv.,n1CL? / Chrl?bnF l?uar e ?? D? 10 2012 0? N-2012-147 e/ec?ronic payment exchange EPX ELECTRONIC TRANSACTION PROCESSING AGREEM? st This Agreement is made this ? day of?r n i Q1?___, by and between, City of Santa Ana with an address at 20 Civic Center Plaza, Santa Ana, C.?? 92?70?1 (" pany") and Phoenix Payment Systems, Inc., a Delaware corporation, (dba Electronic Payment Exchange) with an address at 1201 N. Mazket Street, Suite 701, Wilmington, DE 19801 ("EPX"). Company wishes to initiate electronic debit transactions through EPX to bank accounts maintained by its customers. EPX will utilize the Automated Cleazing House at the United States Federal Reserve ("Federal Reserve") in order to provide this service. Now, therefore, in consideration of the promises contained herein, it is agreed as follows: For purposes of this Agreement and the Schedules referred to herein, the following definitions apply unless the coritext otherwise requires. Capitalized terms used, but not defined, in this Agreement shall have the respective meanings as set forth in the NACHA Operating Rules. A. NACHA -means the National Automated Clearing House Association that establishes the standards, rules and procedures (the "NACHA Operating Rules") that enable depository financial institutions to exchange payments on a national basis. B. ACH -means Automated Cleazing House Network, which is a funds transfer system, governed by the NACHA Operating Rules that provides for the interbank clearing of electronic entries for participating financial institutions. - - - C. Internet (WEB) Initiated Entries -means origination of debit entries (either recurring or single entry) to a consumer's bank account pursuant to Written Authorization that is obtained from the consumer via the Internet. D. Written Authorization -for Internet (WEB) Initiated Entries, means that (1) consumer must be able to read the authorization language displayed on a computer screen or other visual display; (2) Company should prompt the consumer to print the authorization and retain a copy; and (3) Company must be able to provide the consumer with a hazd copy if the authorization is requested. E. Bankin Dav -means any day on which a participating financial depository institution is open to the public during any part of the day for carrying on substantially all its banking functions. F. Settlement - means a transfer of funds between two parties in cash, or on the books of a mutual depository institution, to complete one or more prior transactions, made subject to final accounting. Settlement for the ACH system usually occurs through the Federal Reserve. G. Settlement Date -means the date on which a transfer of funds with respect to a transaction is reflected on the books of the Federal Reserve. 2. EPX will transmit bank account entries initiated by Company to the ACH as. provided in the NACHA Operating Rules. Company may utilize the EPX BuyerWall technology in the processing of ACH transactions. "BuyerWall" shall mean the EPX patent pending technology that utilizes the EPX hosted front-end applications in conjunction with a unique transaction identifier allowing Company to eliminate contact with bank account information during the processing, transmission and storage of ACH data. 3. Company and EPX will comply with the NACHA Operating Rules insofar as applicable, and the applicable NACHA Operating Rules are incorporated into this Agreement by reference. EPX agrees to keep Company advised of NACHA Operating Rules as they are applied and updated by NACHA. The specific duties of Company and EPX provided in the following pazagraphs of this Agreement in no way limit the foregoing undertaking. Company represents and warrants that it has obtained all necessary regulatory approvals, certificates and licenses to provide any services it intends to offer and that it is in compliance with the regulations of the Federal Trade Commission and the Federal Communications Commission and shall comply with all present and future federal, state and local laws and regulations pertaining to Transactions, including, without limitation, the Federal Fair Credit Reporting Act, the Federal Truth-in-Lending Act, the Electronic Fund Transfers Act, the Federal Equal Credit Opportunity Act, as amended, and the Telephone Disclosure and Dispute Resolution Act, as applicable. 4. Company shall obtain all Consents and Authorizations (including without limitation Written Authorization for Internet (WEB) Initiated Entries) required under the NACHA Operating Rules and shall retain such Consents and Authorizations for two (2) yeazs a8er they expire. Company shall beaz the full liability for, and shall indemnify EPX from, ACH items returned by the consumer whose account was debited whether or not proper Consent and Authorization was obtained. In accordance with NACHA Operating Rules, EPX shall reject return items deemed "untimely" and shall dispute return items at Company's request. In no event, however, shall EPX be liable for Company's ACH return items. Initials GDS V FBcH\602228.2 Company shall transmit each ACH file to EPX, in accordance with EPX's rules and policies, no later than 8:00 P.M., Eastern Time one (1) Banking Day prior to the Settlement Date. Failure to do so may result in a delay in the availability of funds. 6. Company shall establish at EPX a reserve fund equal to at least Company's average four (4) day ACH gross dollar volume. EPX shall maintain the right to review and adjust the reserve requirement based upon the Company's actual performance. EPX shall hold this reserve fund to offset returned ACH items and for other liabilities that Company may incur under this Agreement. If the amount of returned ACH items exceeds the balance in the refundable fee account, EPX shall fund the excess via the Company's operating account. Changes in reserve fund requirements will be determined by EPX-according Company's ACH gross dollar volume and Company's ACH return history; any such changes shall be effective immediately. Notwithstanding the reserve fund, Company shall be liable and reimburse EPX for any returned items. The reserve fund shall be funded, maintained and/or replenished by EPX withholding from remittances hereunder. EPX may hold any or all reserve funds for a period of up to one hundred-eighty (180) Banking Days following the termination of this Agreement by either party to offset returned or disputed ACH items or other liabilities under this Agreement. After such period, any amounts remaining in the reserve fund will be promptly returned to Company. 7. Company represents, warrants and covenants that Company will (1) advise EPX in writing of any errors in any ACH transactions submitted hereunder; (2) conduct Company's business in an ethical manner, in accordance with this Agreement, all applicable government rules and regulations and the NACHA Operating Rules; and (3) not use, or allow Company's employees or agents, to commit any acts of fraud, dishonesty or misrepresentation. 8. Company hereby indemnifies EPX against any claim, loss, damage, cost, expense, attorneys' fees and liability (collectively, "Claims") incurred by EPX or third parties on account of Company's breach of this Agreement or any representations, warranties or covenants herein, other than Claims arising from EPX's negligence or willful misconduct. If at any time EPX becomes aware of, or has reason to believe that EPX may have, a Claim for indemnification hereunder, EPX has the right to refuse transmittal, and/or hold all transferred funds for a period of up to one hundred-eighty (180) Banking Days. 9. Company will compensate EPX for providing the services referred to herein according to the EPX rate and fee Schedule A. Irt addition to Schedule A fees, Company shall be charged a $50.00 NSF fee when EPX attempts to debit Company for any returns, rejects, fines, fees and assessments and such charges are returned to EPX for insufficient funds. EPX shall provide Company with thirty (30) days written notification of all rate and fee changes. If such a change occurs, Company has the right to terminate this Agreement upon written notice to EPX, provided that EPX receives such written termination notice within thirty (30) days following the date of the increase notice. A copy of the current rate and fee Schedule is attached hereto. 10. Either party may terminate this Agreement upon at least thirty (30) days prior written notice to the other party in the event that a party is in material breach of this Agreement (including without limitation payment obligations), and such breach is not cured within such period. EPX may immediately terminate this Agreement, or suspend transmittal hereunder, without notice to Company under any of the below listed circumstances: A. Based on financial information concerning Company obtained by EPX, Company poses an unsatisfactory financial risk, as determined by EPX; B. Any act of fraud, dishonesty or misrepresentation is committed by Company, its employees and/or agents or EPX believes in good faith that Company, its employees and/or agents have committed, are committing or are planning to commit any acts of fraud, dishonesty or misrepresentation; C. Any representation, warranty or application made by Company is not true and correct in all material respects; D. Company files a petition, or has a petition filed against it under any bankruptcy or insolvency law, or is otherwise unable to pay its debts as they become due; or E. Company fails to provide financial statements in a format reasonably acceptable to EPX within three (3) days of EPX's written request. F. Company's reason entry codes for unauthorized transactions aze equivalent to or exceed NACHA Operating Rules for reason entry codes pertaining to such transaction thresholds. G. Company is not within the pazameters set forth in the EPX Underwriting Terms and Conditions. EPX may selectively terminate one or more of Company's approved locations without terminating this entire Agreement. In the event of termination, all obligations of Company incurred or existing under this Agreement prior to termination shall survive the termination. 11. In the event Company incurs any loss due to the mishandling of a particulaz file by EPX, EPX's liability to Company shall be limited to the actual direct damages incurred by it resulting from EPX's negligence or misconduct, and shall Initials GDS VFRcE3?6022282 in no event exceed the amount represented by the applicable transaction record, less the fees payable to EPX under this Agreement. In addition, EPX, its affiliates and agents shall not be liable for any incidental, consequential, reliance or special damages in any way connected or arising out of this Agreement or the services provided hereunder. EPX HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 12. In the event an agent of Company delivers any entry or file of entries to EPX, EPX may act in reliance on such entry or file of entries, and it need not inquire of Company as to whether the agent is duly authorized. Company shall be fully liable for the acts and omissions of its agents hereunder. 13. Company shall submit all ACH Transactions that are processed through InfoSend for the particular entity, dba or web property processed by EPX during the term hereof solely to EPX for processing. If Company fails to comply with this provision, Company agrees to pay EPX, a liquidated damages sum within ten (10) days of the date of non compliance. The amount shall equal the greater of i. $250; or ii. 80% of the product of: 1. The average net monthly fees; and 2. The number of months, including any pro rata portion of a month, then remaining prior to the date on which Company may terminate this Agreement in accordance with it terms. Company agrees that the damages suffered as a result of such non compliance would be extremely difficult to calculate with precision. For that reason, the parties hereto agree that the liquidated damages should be computed as set forth above. Any exceptions to this exclusive arrangement must be approved by EPX in advance in writing. 14. This Agreement shall become effective when signed by all parties however the term shall begin upon commencement of processing activity under this Agreement and shall remain in effect for a term of one (1) yeaz unless sooner terminated in accordance with this Agreement. This Agreement shall renew automatically for successive terms of one (1) years each, unless any party provides written notice of termination to the other parties at least 120 days prior to the end of the then current term.. 1 S. The parties agree that any dispute arising out of and/or in the course of the relationship established by this Agreement, or by the Agreement itself, shall be decided, unless mutually resolved by the pazties hereto, in the State where the defendant is physically located, and, the parties hereby submit to said jurisdiction and venue. 16. In the event that any action is filed in relation to this Agreement or the relationship created hereby, the unsuccessful party in the action shall pay to the successful party, in addition to all sums awarded by the court, actual costs and expenses for the successful party's attorneys' fees. 17. All notices hereunder shall be in writing, in English, and shall be deemed properly given when (1) sent by certified mail, return receipt requested, (2) sent by fax with confirmation of receipt by telephone, or (3) delivered by a nationally recognized overnight delivery service, to the addresses listed herein for the respective parties. A party may change such address by written notice to the other party hereto in accordance with this section at least thirty (30) days prior to the initial use of the revised address. 18. If any provision of this Agreement or any application thereof to any person or circumstance shall be held to be invalid by a court of competent jurisdiction or unenforceable to any extent, the remainder of the Agreement and the application thereof to other persons or circumstances shall not be affected thereby and shall be limited or modified to the minimum extent necessary to be enforceable. 19. This Agreement may not be assigned by Company without the prior written consent of EPX as long as the assignment is to a third party that is integrated into InfoSend. EPX may assign this Agreement without limitation. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 20. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if in writing and. signed by each party or an authorized representative of each party. This Agreement, together with the Schedules attached hereto, supersedes any other agreement, whether written or oral, that may have been made or entered into by any party (or by any officer or officers of any party) relating to the matters covered herein and constitutes the entire agreement of the parties hereto. Initials GDS VFRc11?602228.2 IN WITNESS WHEREOF, the parties to this Agreement have caused it to be executed by their duly authorized representatives, with a complete understanding of the contents hereof, on the day and year first set forth hereinabove. Agreed and Accepted: ?? City of Santa Ana ?? ?Q__1 ?? z ? G L_ Paul M. Walters, tty Manager Date AT'TESTi Maria D. Huizac, Caerk oft Council Recommended for Approv 1' Francisco Gutierrez, Executive Director -FMSA " Approved as to Form: L`dura Sheedy, Asst. City Attorney Phoenix Payment Systems, Inc. Authorized Representative, Title Date Initials GDS VF8cH?602228.2 Schedule A Electronic Transaction Processing Agreement ACH Processing Transaction Fee Return/Reject Fee Unauthorized Return Fee EPX Assessment Miscellaneous Fees Monthly Account Maintenance Fee (Per merchant ID) $0.25 $3.50 $15.00 0.00% $1 5.00 Initials GDS V FRcF3?602228.2