HomeMy WebLinkAboutC-2759HPES Services Acireement
This Services Agreement (the "Agreement ") documents the
business relationship between Arcadia, California ( "Customer"),
and HP Enterprise Services, LLC, a Delaware limited liability
company ( "HPES "), and describes the terms and conditions
under which HPES will provide to Customer certain services on
an as requested basis. The obligations of HPES set forth in this
Agreement will be performed by HPES, itself and through its
affiliates. HPES and Customer may be referred to in this
Agreement individually as a "party" and together as the "parties ".
All capitalized terms not defined in the body of this Agreement
shall have the meaning given to that term in the attached
Attachment A which is incorporated herein.
1. Term. The term of this Agreement shall be for three (3)
years, commencing on Lf — j , 2012 (the "Effective Date "),
and, unless earlier terminated as provided in this Agreement, will
continue through t , 2015. Either party may terminate
this Agreement without cause, separate and apart from section
10 hereof, so long as such party provides prior written notice of
at least sixty (60) days to the other party.
2. Services. During the term of this Agreement, in
consideration of the payment and other Customer obligations,
HPES will perform the services, and produce the deliverables,
described in Attachment A (the "Services ").
A. Change in Service Locations. Notwithstanding anything to
the contrary in this Agreement, HPES may, in its sole
discretion, perform the Services or any portion thereof from
any location determined by HPES or relocate any software or
equipment used by HPES to perform the Services provided,
however, that any change in service location made by HPES
in its sole discretion will not (i) materially and adversely impact
HPES' ability to perform its obligations hereunder, (ii) increase
Customer's fees or costs (unless HPES agrees to reimburse
Customer for such increase) or (iii) materially and adversely
impact the way in which Customer conducts its business or
operations.
B. Use of Affiliates and Subcontractors. The Services will be
performed by HPES, itself and through its affiliates. Subject to
the other provisions of this Agreement, HPES may
subcontract any portion of the Services to third parties. HPES
will not disclose any confidential information of Customer to
any unaffiliated subcontractor unless and until such
subcontractor has agreed in writing to protect the
confidentiality of such confidential information in the manner
required by paragraph 7 and then only to the extent necessary
for such subcontractor to perform those Services
subcontracted to it. HPES will remain responsible for the
obligations performed by any of its affiliates or subcontractors
to the same extent as if such obligations were performed by
HPES.
3. Representatives. HPES and Customer shall each
maintain a representative who will be its primary point of contact
in dealing with the other under this Agreement. Either party may
change its representative by giving notice to the other of the new
representative and the date upon which such change will
become effective. In performing its obligations under this
Agreement, HPES will be entitled to rely upon any routine
instructions, authorizations, approvals or other information
provided to HPES by Customer's representative or, as to areas
of competency specifically identified by such representative, by
any other Customer personnel identified by Customer's
representative, from time to time, as having authority to provide
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the same on behalf of Customer in such person's area of
competency. Unless HPES knew of any error, incorrectness or
inaccuracy in such instructions, authorizations, approvals or
other information, HPES will incur no liability or responsibility of
any kind in relying on or complying with any such instructions,
authorizations, approvals or other information.
4. Customer's Role. In addition to the obligations set forth
in the Agreement, Customer shall further have the obligations
set forth in Attachment A.
5. Payment. In consideration for the performance of the
Services, Customer will pay to HPES the charges set forth in
Attachment B, which charges shall be subject to periodic
adjustments as indicated therein. In addition, Customer shall
pay or reimburse HPES for all taxes, assessments, duties,
permits and fees, however designated, as further described in
Attachment B, that are levied upon this Agreement. HPES will
submit an invoice to Customer reflecting the amount owed to
HPES by Customer, with such supporting documentation as
Customer reasonably requests, and Customer shall pay the
invoiced amount by the fifteenth (15th) day following the date of
the invoice. Any past due amounts will bear interest until paid at
a rate of interest equal to the lesser of (i) the prime rate
established from time to time by the Wall Street Journal plus
four percent (4 %) or (ii) the maximum rate of interest allowed by
applicable law. In addition, at HPES' request, Customer will
provide HPES with an explanation of why an undisputed amount
is not paid when due and a proposed payment plan for
Customer to bring such past due amount current. All amounts
will be payable to HPES electronically (either by wire transfer or
ACH), in accordance with payment instructions provided by
HPES from time to time, so as in each case to constitute
immediately available funds by 12 noon, Plano, Texas time, on
the payment date no matter what the method of payment. If a
due date does not fall on a Business Day, payments must be
received by HPES on or before on the Business Day prior to
such date. Within ten (10) days of the date of the invoice on
which a disputed amount appears, Customer will notify HPES in
writing of the specific items in dispute and will describe in detail
Customer's reason for disputing each such item. Within fifteen
(15) days of HPES' receipt of such notice, the parties will
negotiate in good faith pursuant to the provisions of paragraph
13 to reach settlement on any items that are the subject of such
dispute. If Customer does not notify HPES of any items in
dispute within such ten (10) -day period of time, Customer will be
deemed to have approved and accepted such invoice. If any
portion of an amount due to HPES under this Agreement is
subject to a bona fide dispute between the parties as provided
above, Customer will pay to HPES on the date such amount is
due all amounts not disputed in good faith by Customer.
6. Employees. The HPES personnel performing the
Services will be and remain the employees of HPES, and HPES
will provide for and pay the compensation and other benefits of
such employees, including salary, health, accident and workers'
compensation benefits and all taxes and contributions which an
employer is required to pay relating to the employment of
employees. During the term of this Agreement and for a period
of twelve (12) months thereafter, neither party shall solicit,
directly or indirectly, for employment or employ any employee of
the other who is or was involved in the performance of the
Services without the prior written consent of the other.
7. Confidentiality and Announcements. HPES and
Customer agree to be bound by the confidentiality obligations
HPES Services Agreement
set forth below and neither party may make any media release
or other public announcement relating to or referring to this
Agreement without the other's prior written consent.
A. Scope of Obligation. Except as otherwise expressly
provided in this Agreement, HPES and Customer each agree
that (a) all information communicated to it by the other and
identified as confidential, whether before or after the date
hereof, (b) all information identified as confidential to which it
has access in connection with the Services, whether before or
after the date hereof, and (c) this Agreement and the parties'
rights and obligations hereunder, are and shall be deemed to
have been received in confidence and will be used only for
purposes of this Agreement, and each of HPES and Customer
agrees to use the same means as it uses to protect its own
confidential information, but in no event less than reasonable
means, to prevent the disclosure and to protect the
confidentiality thereof. No such information will be disclosed
by the recipient party without the prior written consent of the
other party; provided, however, that each party may disclose
this Agreement and the other party's confidential information
to those of the recipient party's attorneys, auditors, insurers (if
applicable), subcontractors and full time employees who have
a need to have access to such information in connection with
their employment (or engagement, if applicable) by the
recipient party, so long as the recipient party requires, in the
case of its attorneys, auditors and insurers, that each of them
execute a confidentiality agreement containing terms and
conditions no less restrictive than those set forth in this
paragraph 7 and advises, in the case of its subcontractors and
employees, each such subcontractor and employee of the
confidentiality obligations set forth in this paragraph 7. In any
event, compliance by each of the persons referenced in the
preceding sentence with the confidentiality obligations set
forth in this paragraph 7 will remain the responsibility of the
party employing or engaging such persons.
B. Exceptions. The foregoing shall not prevent either
party from disclosing information that belongs to such party
which: (i) is already known by the recipient party without an
obligation of confidentiality other than under this Agreement,
(ii) is publicly known or becomes publicly known through no
unauthorized act of the recipient party, (iii) is rightfully received
from a third party, (iv) is independently developed without use
of the other party's confidential information or (v) is disclosed
without similar restrictions to a third party by the party owning
the confidential information. If confidential information is
required to be disclosed pursuant to a requirement of a
governmental authority, such confidential information may be
disclosed pursuant to that requirement so long as the party
required to disclose the confidential information, to the extent
reasonably possible, provides the other party with timely prior
notice of such requirement and coordinates with such other
party in an effort to limit the nature and scope of such required
disclosure. If confidential information is required to be
disclosed in connection with the conduct of any arbitration
proceeding carried out pursuant to paragraph 13 of this
Agreement, such confidential information may be disclosed
pursuant to and in accordance with the approval and at the
direction of the mediator or arbitrator, as the case may be,
conducting such proceeding. Upon written request at the
expiration or termination of this Agreement for any reason, all
documented confidential information (and all copies thereof)
owned by the requesting party will be returned to the
requesting party or will be destroyed, with written certification
thereof being given to the requesting party. The provisions of
S_.-
this paragraph 7 shall survive the expiration or termination of
this Agreement for any reason. Notwithstanding the
foregoing, HPES may disclose this Agreement and other
confidential information to which it has access hereunder to
professional advisers, financial institutions and other third
parties in connection with any transaction entered into to
provide financing related to this Agreement or the obligations
of HPES hereunder, so long as each of them execute a
confidentiality agreement containing terms and conditions no
less restrictive than those set forth in this paragraph 7.
Notwithstanding anything herein to the contrary, each party to
this Agreement (and each affiliate, officer, employee, director,
advisor, representative, or other agent of such party) is, and
has been from commencement of discussions, permitted to (i)
disclose to any and all persons, without limitation of any kind,
the U.S. federal income tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are
provided to such party relating to such tax treatment and tax
structure, and (ii) consult any tax advisor regarding the U.S.
federal income tax treatment or tax structure of such
transactions; provided that, with respect to any document (or
similar item) that contains information in addition to
information that relates to the tax treatment or tax structure of
such transactions, this exception to any requirement of
confidentiality allows such disclosure and consultation only
with respect to such portions of the document or similar item
that relate to the tax treatment or tax structure of the
transactions.
C. Privacy Laws. The parties acknowledge and agree that
Customer will be and remain the controller of the information
relating to Customer and its customers (the "Customer Data ")
for purposes of all applicable laws relating to data privacy,
personal data, transborder data flow and data protection
(collectively, the "Privacy Laws "), with rights under such laws
to determine the purposes for which the Customer Data is
processed, and nothing in this Agreement will restrict or limit
in any way Customer's rights or obligations as owner and /or
controller of the Customer Data for such purposes. As
controller of the Customer Data, Customer is directing HPES
to process the Customer Data in accordance with the terms of
this Agreement, and is consenting to HPES' access to the
Customer Data for such purpose. The parties also
acknowledge and agree that HPES may have certain
responsibilities prescribed as of the date hereof by applicable
Privacy Laws as a processor of the Customer Data, and
HPES hereby acknowledges such responsibilities to the
extent required thereby for processors of data and agrees that
such responsibilities will be considered as a part of the
Services to be provided by HPES under this Agreement. In
the event that Privacy Laws to which the activities
contemplated by this Agreement are subject are modified or
new Privacy Laws that are applicable to such activities come
into effect, HPES will work with Customer in an effort to
continue to comply with such Privacy Laws, as so modified or
added, but to the extent that such modifications or additions
expand the scope or increase the cost of the activities
previously undertaken by HPES pursuant to this paragraph 7,
HPES will, at Customer's reasonable request, provide such
additional activities as additional services, but only to the
extent that the parties have reached agreement regarding the
nature and scope of such services, the period of time during
which such services will be provided and the basis upon which
HPES will be compensated therefor.
HPES Services Agreement
8. Warranties and Additional Covenants. HPES and
Customer shall have the obligations relating to warranties and
additional covenants set forth below:
A. Performance. HPES represents and warrants that all
Services will be performed in a professional and workmanlike
manner.
B. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS PARAGRAPH 8, HPES MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS
FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO
BE DERIVED FROM THE USE, OF ANY INFORMATION
TECHNOLOGY SERVICE, SOFTWARE, HARDWARE OR
OTHER MATERIALS PROVIDED UNDER THIS
AGREEMENT. HPES DOES NOT REPRESENT OR
WARRANT THAT THE OPERATION OF ANY SUCH
SERVICE, SOFTWARE, HARDWARE OR OTHER
MATERIALS WILL BE UNINTERRUPTED, OR ERROR -
FREE.
C. Laws and Regulations. HPES agrees to comply with
all laws currently in effect that are applicable to HPES'
performance of the Services under this Agreement. The
parties acknowledge that the pricing of all Services under this
Agreement is based on the laws, rules and regulations
applicable to the business, assets or operations of Customer
(collectively, the "Applicable Laws ") at the date of this
Agreement. Customer will promptly advise HPES of any
change in the Applicable Laws (including any change in the
interpretation thereof by a competent court, agency or similar
body) or the adoption of additional Applicable Laws
(collectively, the "New Requirements ") that requires changes
to Services, changes to software or additional software.
HPES may add to the charges, due from Customer for
Services, all reasonable charges for changes to the Services
or software arising from the New Requirements. If the New
Requirements are generally applicable to other customers of
HPES, then such additional charges will be allocated among
Customer and such other customers on an equitable basis.
9. Ownership. Each party retains all rights it possessed
prior to the date of this Agreement in any software, ideas,
concepts, know -how, development tools, techniques or any
other proprietary material or proprietary information that may be
used by such party in connection with its role relating to the
performance of the Services. All software that is licensed by a
party from a third party vendor will be and remain the property of
such vendor. Notwithstanding anything to the contrary in this
Agreement, HPES: (i) will retain all right, title and interest in and
to all development tools, know -how, methodologies, processes,
software, technologies or algorithms used in performing the
Services, if any, which are based on trade secrets or proprietary
information of HPES or are otherwise owned or licensed by
HPES, (ii) will be free to use the ideas, concepts and know -how
which are developed in the course of performing the Services
and may be retained by HPES' employees in intangible form and
(iii) will retain ownership of any HPES -owned software or
development tools that are used in providing Services. Subject
to the obligations set forth in paragraph 7, each of the parties will
be free to use such ideas, concepts and know -how which are
developed by it in the course of performing its obligations under
this Agreement and which may be retained by its employees in
intangible form. No licenses will be deemed to have been
Page 3
granted by either party to any of its patents, trade secrets,
trademarks or copyrights, except as otherwise expressly
provided in this Agreement. Nothing in this Agreement shall
require HPES or Customer to violate the proprietary rights of any
third party in any software or otherwise.
10. Termination.
A. If either party materially or repeatedly defaults in the
performance of any of its obligations under this Agreement,
and such default (a) is of a non - monetary nature and is not
substantially cured within sixty (60) days after notice is given
to the defaulting party specifying the default or, with respect to
those defaults that cannot reasonably be cured within sixty
(60) days, should the defaulting party fail to proceed within
sixty (60) days to commence curing the default and thereafter
to proceed with all reasonable diligence to substantially cure
the default, or (b) is related to an obligation to make payments
to the other party hereunder and is not cured within ten (10)
days after notice is given to the defaulting party specifying the
default, the party not in default may, by giving notice thereof to
the defaulting party, terminate this Agreement as of a date
specified in such notice of termination. Upon expiration or
termination of this Agreement for any reason, HPES will cease
to perform the Services, and Customer will pay to HPES all
sums due to HPES as a result of the services performed prior
to such expiration or termination (prorated as appropriate).
Expiration or termination of this Agreement for any reason will
not release either party from any liabilities or obligations set
forth in this Agreement which (a) the parties have expressly
agreed will survive any such expiration or termination or (b)
remain to be performed or by their nature would be intended
to be applicable following any such expiration or termination.
B. Either party may terminate a portion of this Agreement
without cause, effective immediately, upon written notice to
the other party if: (i) either party receives notice from a state
or federal regulatory body that such portion is unlawful, invalid
or unenforceable, (ii) any Card Company or Credit/Debit Card
Acquirer informs either party that any portion of this
Agreement is in violation of the respective Card Company
bylaws or operating rules or (iii) any Card Company or
Credit/Debit Card Acquirer terminates the Merchant Services
Agreement (as defined in the attached Attachment A)
between Customer and such Card Company or Credit/Debit
Card Acquirer.
11. Indemnities. HPES and Customer shall have the
indemnity obligations set forth herein.
A. General. Subject to paragraph 12 and the limitations
set forth below in this paragraph 11A and the procedures set
forth below in paragraph 11D, HPES and Customer each
agree to defend the other party against any action to the
extent that such action is based upon a claim that the software
(other than third party software) or confidential information
provided by the indemnitor, or any part thereof, (i) infringes a
copyright perfected under United States statute, (ii) infringes a
patent granted under United States law or (iii) constitutes an
unlawful disclosure, use or misappropriation of another party's
trade secret. The indemnitor will bear the expense of such
defense and pay any damages and attorneys' fees that are
attributable to such claim finally awarded by a court of
competent jurisdiction.
B. Exclusions. Neither HPES nor Customer will be liable
HPES Services Agreement
to the other for claims of indirect or contributory infringement.
In particular, the indemnitor will have no liability to the
indemnitee hereunder if any claim of infringement is based
upon the use of software provided by the indemnitor
hereunder in connection or in combination with equipment,
devices or software not supplied by the indemnitor or used in
a manner for which the software was not designed. Also, the
indemnitor will have no liability if the indemnitee modifies any
software provided by the indemnitor hereunder and such
infringement would not have occurred but for such
modification, or uses the software in the practice of a patented
process and there would be no infringement in the absence of
such practice, or such claim arises out of the indemnitor's
compliance with specifications provided by the indemnitee
and such infringement would not have occurred but for such
compliance.
C. Additional Remedy. If software or confidential
information becomes the subject of an infringement claim
under paragraphs 11A through 11C, or in the indemnitor's
opinion is likely to become the subject of such a claim, then, in
addition to defending the claim and paying any damages and
attorneys' fees as required in these paragraphs 11A through
11 C, the indemnitor will either (A) replace or modify the
software or confidential information to make it noninfringing or
cure any claimed misuse of another's trade secret or (B)
procure for the indemnitee the right to continue using the
software or confidential information pursuant to this
Agreement. Any costs associated with implementing either of
the above alternatives will be borne by the indemnitor but will
be subject to paragraph 12. If neither option is available to the
indemnitor through the use of reasonable, diligent efforts, (x)
the indemnitee will return such software or confidential
information to the indemnitor and (y) if requested by the
indemnitee in good faith, the parties will negotiate, pursuant to
paragraph 13 of this Agreement but subject to paragraph 12
of this Agreement, to reach a written agreement on what, if
any, monetary damages (in addition to the indemnitor's
obligation to defend the claim and pay any damages and
attorneys' fees as required above in paragraphs 11A through
11 C are reasonably owed by the indemnitor to the indemnitee
as a result of the indemnitee no longer having use of such
software or confidential information.
D. Procedures. The indemnification obligations set forth
in this paragraph 11 will not apply unless the party claiming
indemnification: (a) notifies the other promptly in writing of
any matters in respect of which the indemnity may apply and
of which the notifying party has knowledge, in order to allow
the indemnitor the opportunity to investigate and defend the
matter; provided, however, that the failure to so notify will only
relieve the indemnitor of its obligations under this paragraph
11 if and to the extent that the indemnitor is prejudiced
thereby; and (b) gives the other party full opportunity to control
the response thereto and the defense thereof, including any
agreement relating to the settlement thereof; provided,
however, that the indemnitee will have the right to participate
in any legal proceeding to contest and defend a claim for
indemnification involving a third party and to be represented
by legal counsel of its choosing, all at the indemnitee's cost
and expense. However, if the indemnitor fails to promptly
assume the defense of the claim, the party entitled to
indemnification may assume the defense at the indemnitor's
cost and expense.
The indemnitor will not be responsible for any settlement or
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compromise made without its consent, unless the indemnitee
has tendered notice and the indemnitor has then refused to
assume and defend the claim and it is later determined that
the indemnitor was liable to assume and defend the claim.
The indemnitee agrees to cooperate in good faith with the
indemnitor at the request and expense of the indemnitor.
12. Liability. HPES' liability to Customer for any damages
arising out of or related to this Agreement, regardless of form of
action that imposes liability, whether in contract, equity,
negligence, intended conduct, tort or otherwise, will be limited to
and not exceed, in the aggregate for all claims, actions and
causes of action of every kind and nature for the amount of the
Convenience Fees under this Agreement for the most recent six
(6) months at the time the first event giving rise to such liability
arose. HPES will not be liable for, any amounts consisting of or
attributable to loss of income, goodwill, profit or savings or for
indirect, incidental, consequential, exemplary, punitive or special
damages of any party, including third parties, even if HPES has
been advised of the possibility of such damages in advance.
Each party will have a duty to mitigate damages for which the
other party is responsible. No claim, demand for arbitration or
cause of action which arose out of an event or events which
occurred more than two (2) years prior to the cause of action
which arose out of an event or events which occurred more than
two (2) years prior to the filing of a demand for arbitration or suit
alleging a claim or cause of action may be asserted by either
party against the other. The provisions of this paragraph 12 will
survive the expiration or termination of this Agreement for any
reason. Notwithstanding anything set forth in this paragraph 12
to the contrary, in the event that any Services provided to
Customer are inaccurate, incomplete, incorrect, or otherwise
defective due solely to HPES' fault or negligence, Customer's
sole and exclusive remedy shall be for HPES to correct such
defect without charge to Customer, provided that HPES has
received written notice of such defect from Customer within ten
(10) Business Days from the date of which the Customer
become aware of, or should have become aware of, such
defect. HPES shall have no other or further liability to Customer
for defective Services.
13. Arbitration. Any dispute, controversy or claim arising
under, out of, in connection with or in relation to this Agreement,
or the breach, termination, validity or enforceability of any
provision hereof (a "Dispute "), if not resolved informally through
negotiation between the parties, will be resolved by final and
binding arbitration conducted in accordance with and subject to
the Commercial Arbitration Rules of the American Arbitration
Association then applicable. One arbitrator will be selected in
accordance with such rules, and the arbitrators will allow such
discovery as is appropriate, consistent with the purposes of
arbitration in accomplishing fair, speedy and cost effective
resolution of disputes. The arbitrator will reference the rules of
evidence of the Federal Rules of Civil Procedure then in effect in
setting the scope of discovery. Judgment upon the award
rendered in any such arbitration may be entered in any court
having jurisdiction thereof, or application may be made to such
court for a judicial acceptance of the award and enforcement, as
the law of such jurisdiction may require or allow. Any arbitration
conducted pursuant to this paragraph 13 will take place in Los
Angeles, California if pursued by Customer and in Customer's
city stated below if pursued by HPES. Other than those matters
involving injunctive relief or any action necessary to enforce the
award of the arbitrator, the parties agree that the provisions of
this paragraph 13 are a complete defense to any suit, action or
other proceeding instituted in any court or before any
HPES Services Agreement
administrative tribunal with respect to any Dispute or the
performance of the Services by HPES. Nothing in this
paragraph 13 prevents the parties from exercising their right to
terminate this Agreement in accordance with paragraph 10.
14. Excused Performance. Neither party shall be deemed
to be in default hereunder, or will be liable to the other, for failure
to perform any of its obligations under this Agreement (other
than the obligation to make payments hereunder with respect to
Services that have been performed) for any period and to the
extent that such failure results from acts or omissions of the
other party or third parties, natural disasters, riots, war, civil
disorder, court order, acts or regulations of governmental
bodies, labor dispute or any other causes beyond that party's
reasonable control (including failures or fluctuations in electrical
power, heat, light, air conditioning or telecommunications
equipment or lines) and which it could not have prevented by
reasonable precautions or could not have remedied by the
exercise of reasonable efforts; provided that the party claiming
excuse from performance informs the other party promptly and
uses reasonable efforts under the circumstances to correct the
deficiency.
15. Right to Engage in Other Activities. Customer
acknowledges and agrees that HPES may provide data
processing and other information technology services for third
parties at any HPES facility that HPES may utilize from time to
time for performing the Services. Nothing in this Agreement will
impair HPES' right to acquire, license, market, distribute,
develop for itself or others or have others develop for HPES
similar technology performing the same or similar functions as
the technology and Services contemplated by this Agreement.
16. Notices. All notices under this Agreement will be in
writing and will be deemed to have been duly given if delivered
personally or by a nationally recognized courier service, faxed or
mailed by registered or certified mail, return receipt requested,
postage prepaid, to the parties at the addresses set forth herein.
All notices under this Agreement that are addressed as provided
in this paragraph 16, (a) if delivered personally or by a nationally
recognized courier service, will be deemed given upon delivery,
(b) if delivered by facsimile, will be deemed given when
confirmed and (c) if delivered by mail in the manner described
above, will be deemed given on the fifth (5th) Business Day after
the day it is deposited in a regular depository of the United
States mail. Either party may change its address or designee
for notification purposes by giving notice to the other of the new
address or designee and the date upon which such change will
become effective.
17. Export Regulations. This Agreement is expressly
made subject to any United States government laws,
regulations, orders or other restrictions regarding export from the
United States of computer hardware, software, technical data or
other items, or derivatives of such hardware, software, technical
data or other items. Each party will reasonably cooperate with
the other and will provide to the other promptly upon request any
documents as are reasonably requested to obtain approvals,
consents, licenses and /or permits required for any payment or
any export or import of products or services under this
Agreement. The provisions of this paragraph 17 will survive the
expiration or termination of this Agreement for any reason.
18. Other. Where agreement, approval, acceptance or
consent of either party is required by this Agreement, such
action will not be unreasonably withheld or delayed. If any
Page 5
provision (other than a provision relating to any payment
obligation) of this Agreement or the application thereof to any
persons or circumstances is, to any extent, held invalid,
unenforceable, or unlawful, or if any Card Company or
Credit/Debit Card Acquirer informs either party that any portion
of this Agreement is in violation of the respective Card Company
by -laws or operating rules, the remainder of this Agreement or
the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable will not
be affected thereby, and each provision of this Agreement will be
valid and enforceable to the extent permitted by law or the
respective operating rules and by -laws. The provisions of this
Agreement will be given equal weight regardless of the order in
which they appear herein. Nothing in this Agreement may be
relied upon or will benefit any party other than HPES and
Customer. This Agreement (a) will be governed by the
substantive laws of the State of Texas (without giving effect to
any choice -of -law rules that may require the application of the
laws of another jurisdiction), (b) may not be assigned by either
party without the prior written consent of the other and (c)
together with the attachments hereto (each of which are
incorporated into this Agreement by this reference), constitutes
the entire agreement of the parties with respect to the subject
matter hereof, superseding all previous representations,
understandings or agreements with respect thereto.
In Witness Whereof, the parties have duly executed and
delivered this Agreement as of the Effective Date.
HP ENTERPRISE SER C S, L
By:
Title: Account Manager
Print Name: Tom Jackson
Address: 5400 Legacy Drive
Plano, TX 75024
Date: 0/// 71
CUSTOMER
By:1
Title: City Manager
Print Name: Donald Penman
Address: 240 West Huntington Drive,
Arcadia, CA 91066
Date: March 14, 2012
HPES Services Agreement
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APPROVED AS TO FORM:
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Stephen P. Deitsch
City Attorney
CONCUR:
Hue Quach
Administrative Services Director
Page 6
Attachment A
Services
1. DEFINITIONS
Whenever used in this Attachment A, the words and
phrases listed below shall have the meanings given below.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the
Agreement.
EFT — Electronic Funds Transfer. Automated debit from the
Cardholder's checking or savings account.
Business Day - Each weekday, Monday through Friday,
which is not a holiday of the United States Federal Reserve
System.
Card Company- An association, such as Visa U.S.A. Inc. or
MasterCard International, Incorporated that operates an
interchange system for exchanging information, transactions,
money and other items on a standardized and consistent basis
between member financial institutions with respect to
Credit/Debit Card payment transactions.
Cardholder — Owner of the payment instrument being used.
In the case of Credit/Debit Card transactions this is the
responsible party for the card. In the case of EFT transactions,
this is responsible party or owner of the checking or savings
bank account.
Chargeback — The challenge of a transaction that is
challenged by a Cardholder or merchant bank, which is sent
back through interchange to the bank of account (Cardholder or
merchant) for resolution. Such challenge can be for all or any
portion of a transaction, whether or not such dispute is valid.
Convenience Fee — A fee charged by Cardholders of
Customer for the use of the Services as set forth in Attachment
B.
Credit/Debit Card — A VISA - branded, MasterCard - branded
or other mutually agreeable Credit/Debit Card issued by a
financial institution in accordance with the rules and regulations
of the Card Company.
Credit/Debit Card Acquirer — Any financial institution
providing services related to those in this Agreement, which is a
member bank of Visa or MasterCard national bank card
associations and provides "merchant bank" acquiring services
which enable consumers and businesses to use Credit/Debit
Cards and /or Discover and American Express merchant
financial institutions, as applicable.
Credit/Debit Card Issuer — Any financial institution, which is
a member bank of Visa or MasterCard National bankcard
associations and provides Credit/Debit Cards to consumers and
businesses used to purchase goods and services from
merchants sponsored by Visa and MasterCard merchant
financial institutions.
IVRS (Interactive Voice Response System) — An automated
telephone response System, accessible by Cardholders for the
initiation of Payment Requests, that presents a series of choices
to the caller, and to which the caller responds by pushing
buttons on the touch -tone telephone.
Merchant Services Agreement — An agreement between
the Credit/Debit Card Acquirer and Customer establishing the
authority for the Customer to accept Credit/Debit Cards as a
means for payment for goods and services. The authority is
granted with the condition that the Customer follow established
Card Company operating rules and regulations.
Remittance — An amount remitted by a Card Company in
connection with payment by a Cardholder to the Customer or
payment of a Convenience Fee transaction.
Retrieval Request — Requests initiated by a Cardholder or
his Credit/Debit Card Issuer, for information regarding specific
charges to his Credit/Debit Card account for the Customer bill
payment or Convenience Fee.
Returns - Customer's initiated reversal of a Credit/Debit
Card charge or an EFT payment to a Cardholder's account.
Settlement — The process by which the funds for Cardholder
transactions are passed from Credit/Debit Card Issuers to
Credit/Debit Card Acquirers or from the settlement bank to the
Customer.
System or Systems — Are (i) computer programs, including
without limitation software, firmware, application programs,
operating systems, files and utilities; (ii) supporting
documentation for such computer programs, including without
limitation input and output formats, program listings, narrative
descriptions, operating instructions and procedures, user and
training documentation and special forms; and (iii) the tangible
media upon which such programs are recorded, including
without limitation chips, tapes, disks and diskettes.
All other capitalized terms in this attachment, other
attachments or elsewhere shall have the meaning given to that
term in the Agreement.
2. GENERAL DESCRIPTION OF CONVENIENCE PAY
SERVICES PROGRAM
In general, but subject to the more detailed description of HPES'
and Customer's obligations elsewhere in this Agreement, the
Services is a merchant bill payment service whereby a
Cardholder uses an IVRS or an HPES Internet site
(paybill.com /< Customer choice >) to request a payment
transaction to Customer by means of a charge against a
Credit/Debit Card or an EFT debit (the "Payment Request ") in
accordance with HPES' and Customer's procedures.
Concurrently, the Cardholder or Customer shall be charged the
applicable fee for use of the Services as set forth in Attachment
B (the "Convenience Fee ") in connection with using the Services
as described herein. The portal to accept Payment Requests is
available twenty -four (24) hours a day, seven (7) days per week
except for scheduled maintenance. System downtime will not
exceed two percent (2 %) of the time, not including scheduled
maintenance, during the term of the Agreement. HPES is not
responsible for the availability of the Internet or the Customer's
Systems.
Payment Requests processed hereunder will be subject to the
appropriate approval, by or on behalf of the Credit/Debit Card
Issuer of a transaction for a merchant or another affiliate bank
(each, an "Authorization ") and other policies and security
procedures established by HPES or Credit/Debit Card Acquirer
or Issuer from time to time or otherwise agreed to in writing by
the parties. The IVRS and Internet site will initiate an on -line
Authorization request through the respective Credit/Debit Card
Attachment A — Page 1
Attachment A
Services
Issuer for payment of the Customer bill and the Convenience
Fee amounts. EFT Payment Requests will verify the bank
routing and transit number. The IVRS and Internet site will
provide a confirmation number to Cardholder to confirm
acceptance and processing of the bill payment transaction if the
Payment Request was accepted. If a Payment Request was
declined, the IVRS or the website will instruct the Cardholder to
contact their Credit/Debit Card Issuer. Payment to Customer will
not be processed if payment of the Convenience Fee is not also
approved. In addition, HPES, on behalf of Customer, at the
request of Customer, will deny a Credit/Debit Card or EFT
payment based on a prior Chargeback or an EFT transaction
that was returned and not authorized by the bank of the
Cardholder (a "Returned EFT Item "). HPES shall not process
payment transactions manually, except for correcting rejected
transactions and processing adjustments.
HPES will provide support for Customer's customer service staff
during HPES' standard business hours from 7:00 a.m. to 7:00
p.m. CST. Customer service will consist of responding to
inquiries concerning such matters as payment verification,
reconciliation, accounting, Remittance Data Files, and general
Services operation delivery questions. HPES shall make a
commercially reasonable attempt to respond to all Customer
inquiries by the end of the next Business Day after notification.
In cases where inquiries cannot be resolved by the end of the
next Business Day, HPES shall keep a record of all actions that
require more than twenty -four (24) hours to resolve and present
these issues to the Customer representative.
3. SCRIPT PROMPTS, INTERNET SITE AND
PARAMETERS
The script prompts, Internet site and parameters shall be
described in the Customer set -up sheet provided to Customer at
implementation. Customer shall approve all IVRS scripts in use
and the Internet site to be used, hereunder, prior to
implementation. Any customized changes to the standard script
prompts, the Internet site and parameters listed in the set -up
sheets require a three (3) -week lead -time. With respect to
customized changes, HPES will respond with the estimated time
to make the change in seven (7) Business Days. Such charges
will be in accordance with the fee schedule set forth in
Attachment B, Section B -2.
4. REMITTANCE DATA FILE AND REPORT DELIVERY
A data file that includes both summary and detail of all
Cardholders' initiated payment transactions reflecting payments
processed during the current Business Day shall be created
after each Business Day's Settlement cut -off time (a
"Remittance Date File ") and should be delivered electronically to
i.Financial Control shows the processing, verifying, and
monitoring of Credit/Debit Card and EFT transactions from
Cardholder by HPES. HPES will provide Customer with
accurate payment detail to allow for timely and accurate
posting of the Cardholder accounts.
ii. Daily Payment Detail shows the detail and totals of all
payments processed by HPES and shall include Cardholder's
Customer account number, payment amount, payment type,
date and time of the payment, payment type used (specific
Credit/Debit Card type or EFT), confirmation number,
Convenience Fee amount.
iii. Daily Payment Summary shows the daily totals of all
payments and Customer Settlement transactions processed
by HPES and submitted for Settlement, on behalf of Customer
and shall include amount and volume by, payment type used
(specific Credit/Debit Card type or EFT), and processed
through each Business Day.
iv. Daily Detail — Adjustments shows the account detail
and daily totals of all Customer initiated Returns, Returned
EFT Items and Credit/Debit Card Issuer Chargebacks
received and processed by HPES and shall include
Cardholder's Customer account information, payment amount,
payment type (Credit/Debit Card type used or EFT), Return or
Chargeback code, original payment date, and confirmation
number.
5. ADJUSTMENT PROCESSING - RETRIEVALS,
CHARGEBACKS, REFUNDS and RETURNED EFT ITEMS
HPES will from time to time provide adjustment services for
the handling of Credit/Debit Card Retrieval Requests,
Chargebacks and Return EFT Items received from the
Credit/Debit Card Acquirer or a bank. Upon receipt of a
Retrieval Request, HPES will provide information, reasonably
required, to satisfy the Retrieval Request. In the event that the
Retrieval Request is asking for missing name and /or address
information, HPES will attempt to obtain this information from
Customer. It is Customer's option to comply with the request or
not. If Customer elects to complete this information, Customer
shall complete the name and address information and return it to
HPES within one (1) Business Day. The processed Chargeback
transaction(s) provided by the Credit/Debit Card Acquirers will
be detailed on the daily Financial Report and Remittance Data
File provided to the Customer. HPES can, at Customer's option,
provide stop payment security parameters to block the use of a
Credit/Debit Card, bank account, or Customer account number
that has been involved in a previous Chargeback or Return
situation.
Customer no later than 4:00 p.m. CST. Files will be in HPES'
standard flat file format unless mutually agreed to otherwise, 6. ADDITIONAL HPES RESPONSIBILITIES
which may result in an additional charge. HPES shall retain
each Remittance Data File for a minimum of thirty (30) days and
retransmit the Remittance Data File in the event of an
unsuccessful Transmission or upon request of Customer. HPES
shall retain a record of all Customer payment data for the greater
of (a) a period of three (3) years or (b) as required by state law,
statutes and /or federal regulations. At the end of each Business
Day, HPES will submit batch close transactions electronically to
the appropriate Credit/Debit Card Acquirer and send all EFT
transactions electronically to the appropriate banks. Customer
is responsible for accessing and retrieving the Remittance Date
HPES will provide support, maintenance and updates for the
IVRS equipment, IVRS Systems, IVRS software, IVRS
database(s) and Internet site if provided by HPES. HPES will
monitor call volumes and Internet site hits, IVRS and Internet
system performance, and maintain adequate personnel and
Systems resources to provide Services. HPES shall maintain
records of each payment using the Services and such records
shall include: (i) information required to produce the reports
specified in herein and (ii) material complaints concerning
Services. HPES will provide at least sixty (60) days advance
File. The Remittance Date File will have the following reports:
Attachment A — Page 2
Attachment A
Services
written notice to Customer of any changes or enhancements to
the HPES System where such changes alter the way of use or
process for the Customer Cardholder and Customer. HPES will
provide written notice to Customer of any changes that may
affect Customer's ability to use the Services.
ADDITIONAL CUSTOMER RESPONSIBILITIES
Customer shall, at its own cost and expense: (A) comply with (i)
all state and federal laws and regulations which affect the
Services provided hereunder, (ii) the Merchant Services
Agreement(s) between Customer and any Card Company or
Credit/Debit Card Acquirer and their applicable by -laws,
regulations and operating rules, (iii) HPES' operating policies
and procedures for the Services and (iv) written materials,
advice and technical information provided in connection with the
Services provided hereunder; (B) distribute, inspect, and review
all reports created from information transmitted or delivered by
HPES and reject all incorrect reports within two (2) Business
Days after receipt thereof for daily reports and within three (3)
Business Days after receipt thereof for other than daily reports;
provided, however, that with respect to information related to
Chargebacks and retrievals, Customer shall review and respond
promptly to such information in accordance with the operating
rules of the Card Companies, if applicable; however,
notwithstanding the foregoing time limits, Customer shall
promptly inform HPES of any errors, deficiencies, or
irregularities reflected in any such statements that Customer
discovers. Failure to so reject any report collected from such
information shall constitute acceptance thereof. Customer shall
indemnify and hold harmless HPES from and against any and all
taxes, assessments, duties, permits, fees, or other charges of
any nature or kind that Customer is responsible to pay, or is
liable for, as well as, any additions to tax, penalties, interest,
fees, or other expenses, if any, incurred by HPES as the result
of any such taxes, assessments, duties, permits, fees, or other
charges not being paid at the time or in the manner required by
applicable law, or any taxes, assessments, duties, permits, fees,
or other charges of any nature or kind that are imposed upon or
related to any payment by a Cardholder, and goods and
services sold by Customer to Cardholders. Customer agrees
to indemnify, defend and hold HPES harmless from any and all
third party claims, actions, damages, liabilities, costs, and
expenses, including without limitation reasonable attorneys` fees
and expenses ( "Losses "), arising out of the Customer's activities
in connection with its Merchant Services Agreement (including,
without limitation, any Losses related to Chargebacks or
reversals of transactions by Cardholders). The provisions of this
paragraph shall survive the term or termination of the Agreement
for any reason.
Attachment A — Page 3
Attachment B
Payment
B -1. Cardholder Charges. For use of the Services under
this Agreement, the Cardholder or the Customer, as
designated below will be charged a Convenience Fee
for electing to use the Services pay -by -phone and pay -
by- Internet services or via EFT. The Convenience Fee
will be assessed to the Cardholder's Credit/Debit Card
account as a line item on their Credit/Debit Card
statement separate from the bill payment amount. The
EFT Convenience Fee is separate from the bill
payment amount deducted from their bank account.
The Convenience Fee is subject to change effective for
Cardholder transactions submitted on or after six
months of the effective date, upon at least thirty (30)
days' prior written notice to Customer:
Each Credit/Debit Card Convenience Fee is:
Water bills - $2.95 based on an average payment
amount of $100.00.
Police department - $2.00 based on a $53.00 average
payment amount.
City Miscellaneous Receivables - $4.25 based on a
$150.00 average payment amount.
The EFT Convenience Fee is $2.50 regardless of
payment amount.
B -2. Customer Charges. The following table sets forth
fees payable to HPES by Customer with respect to the
Services.
HPES Fee Schedule
Service Description
Fee Schedule
Service Implementation
$ 750 — One time -- Waived
Fee
Service Monthly
$75 / month -- Waived
Minimum Fee
IVRU Voice Recording
$500 / per occurrence for
Fee **
English - Waived
IVRU Voice Recording
$750 / per occurrence for
Fee **
Spanish - Waived
Technical and Business
$153 / hour + actual travel
Development Man-
and living expenses, upon
Rates * **
prior written consent from the
parties.
** The Service Implementation Fee includes the initial
IVRS Voice Recording. Once Customer signs off on
the IVRS script, any future custom script
modifications may be billed according to the HPES
Fee Schedule. Changes to the IVRS script to reflect
modifications by HPES to the Convenience Fee will
be implemented without charge to Customer
hereunder.
** The Service Implementation Fee includes the
technical support needed to establish standard
Services. Should Customer require customization of
the IVRS script, reports or Remittance Data File
formats during or after implementation, then the
corresponding Technical and Business Development
Man -Rates will apply.
B -3. Taxes
Attachment B — Page 1
There will be added to any charges under this
Agreement, or separately billed, and Customer will
either pay to HPES, or reimburse HPES for the
payment of, amounts equal to any taxes, assessments,
duties, permits, fees and other charges of any kind,
however designated, assessed, charged or levied,
based on, with respect to or measured by (a) such
charges, (b) this Agreement or (c) the Services,
software, equipment, materials or other property
(tangible or intangible), or the use thereof or the
resources used therefor, that are provided under this
Agreement. Charges payable under this Section B -3
include state and local sales taxes, use taxes, property
taxes, privilege taxes, excise taxes (including federal
excise taxes), value added taxes and any taxes or
amounts in lieu thereof paid or payable by HPES in
respect of the foregoing, exclusive however, of taxes
based on the net income of HPES.