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HomeMy WebLinkAbout032116_ca06Department of Public Works O Consent Agenda Page 1 of 2 Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Philip Morley, County Administrator From: Monte Reinders, Public Works Director /4�— Agenda Date: March 21, 2016 Subject: Execution of Payment Fusion Gateway Services Agreement Statement of Issue: Public Works entered into a proprietary CompuWeigh-6 software contract through an RFP process with vehicle scale software provider Paradign Software L.L.C. on 7/6/09 for scale automation software system installation and maintenance, for a 10 year plus renewable term. Change Order No. 1 was executed for the same contract term on 4/9/12 to Paradign to enable a software update to provide for PCI compliance, new industry electronic security standards. To continue Paradign PCI compliance without requiring Jefferson County system wide compliance, Paradign has partnered with Axia Holdings Inc. to allow continued operation of Paradign software while maintaining PCI compliance. Analysis/Strategic Goals/Pro's and Con's: Automated internet scale software has enabled bank card scanners to be used for solid waste payment transactions which are linked to vehicle scales at the transfer station facility. By connecting the tonnage fees to the payment process, reduced customer transaction times, reduced data entry errors, and less error correction time will increase staff efficiency and reduce customer transaction time. Fiscal Impact/Cost Benefit Analysis: Estimated Gateway services at $.09/transaction authorization for approximately 32,000 transactions plus base costs is estimated at a total cost of under $3,000 annually. Department of Public Works O Consent Agenda Page 2 of 2 Recommendation: Public Works recommends execution of Payment Fusion Gateway Services Agreement for a renewable three year term. Department Contact: Tom Boatman, Solid Waste Manager: 385-9213 Revigwgd By: -��� Philip Morl ounty Administr for Date February 22, 2016 Joesph Kruger, Inside Sales Manager Axia Holdings Inc 820 State Street, 3'a Floor Santa Barbara, CA 93101 P 877 875-6614 F 877-875-5135 Jefferson County Department of Public Works 623 Sheridan St Port Townsend, WA 98368 (360) 385-9160 Monte Reinders, P.E. Pub/ic Works Director/County Engineer www axiapayments com Re Agreement: Payment Fusion Gateway Services and Jefferson County Public Works This letter acknowledges and approves Axia Holdings request for Agreement with the following provisions 1 Axia Agreement Part 19 Term and Part 20 Effect of Termination will be modified to include Part 19 Jefferson County will provide written notice to Axia Holdings of its intent not to renew at least (30) days prior to the end of the then -current term b Part 19, Part 20 Jefferson County may opt -out of the Agreement with no penalties based solely on Axia operational performance as detercmned by Jefferson County Public Works within (60) days of the signed agreement Please provide responsible party signature, title and date below and return to Jefferson County Public Works Name Title e s t i r��.. ,�- Date I I to Thank you Thomas A Boatman, Solid Waste Manager Cc Monte Reinders, PWD, Cathy Taylor, PW Finance Manager Attachment 1 Payment Fusion Sales Agreement 2 30 day Quote, Joseph Krueger, 01/28/2016 Approved wto formonly Jefferson Co Prosecutor' ffice David Alvarez, Chief Civil DPA m IN 0 Payment No .. Fusion Please include client VAR Programming information with this form 10W Shipping Info Jefferson County F1 Corporate Name Some as Business Contact Into DBA DBA Contact Name Cathy Taylor Contact Name Dennis Bates Address 623 Sheridan Street Address 325 County Landfill Road city Port Townsend city Port Townsend State W A . zip 98368 State W A . zip 98368 Phone 360-385-9163 Phone 360-301-0550 Email CTaylor@co.jefferson.wa.uS Email dbates@coJefferson.wa.us Shipping Type Account Setup Fee $30.00 Setup Fee/Terminal $25.00 Account Monthly Fee $10.00 Monthly Cost/Terminal $19.00 Per Item Fee $0.09 Terminal Type Ingenico iSC250 Cost $669.00 Quantity 1 Total Cost $669.00 + Tax and Shipping Setup Options (select one) nStandard nRecurring Billing Add -On Routing Number 325182289 Deposit Number 105000082826 Signature Date Client Name Rep Name 111110 PAYMENT FUSION PLATFORM TERMS & CONDITIONS These Terms and Conditions, as well as the terms set forth in the Sales Agreement and other documents executed by the parties constitute the agreement ("Agreement") between Axia Holdings, Inc and its subsidiaries and affiliates (including, without limitation, Axia Payments, Inc doing business as Axia Payments and AxiaMed, and Payment Fusion, Inc ) (collectively, "Platform Provider") and the contractual party utilizing the Products and Services hereunder ("Customer") For adequate consideration, the receipt of which is hereby acknowledged, Platform Provider and Customer, intending to be legally bound, mutually agree to the following terms and conditions 1. Definitions Certain capitalized terms shall have the meanings set forth below 1 I "Authorized Users" means persons or entities that are authorized by Customer to access and use the Services 12 "Documentation" means the written materials provided to Customer, including terms and conditions, training manuals, support policies, API and related documentation, integration tools and manuals and other documentation related or assist or describe the Services and/or the Products provided by Platform Provider 13 "Engagement Hardware" means the applicable Platform Provider hardware distributed by Platform Provider and certified for use with the Services and used by Customer to enable the use of certain of the Services 14 "Gateway Services" means the transaction processing services including the transmission, acceptance and authorization of credit, debit ACH and other transactions on behalf of Customer to a payment processing network through the Axia ePay Gateway, another gateway provided by Platform Provider and, as applicable, the Payment Fusion Platform 15 "Payment Fusion Platform" means the cloud -based payment solution owned and maintained by Platform Provider including the hardware and software utilized for processing credit, debit and other transactions as well as transmitting other data between a Customer, a software solution utilized by a Customer as well as the consumers of the goods and/or services provided by the Customer 16 "Product(s)" means all equipment, Engagement Hardware, firmware, Software, and other applications, including all updates, modifications, enhancements, replacements, provided to Customer under this Agreement Each Product selected by Customer and the pricing related thereto shall be set forth on the Sales Agreement 17 `Services" means the select Gateway Services and the services provided by Platform Provider through the Payment Fusion Platform 18 "Software" means the software programs, including without limitation the software related to the Gateway Services and Payment Fusion as well as related software & all pass-thru software licenses from third -party software providers whose software is part of the offering under this Agreement 2. Use of Services and Products Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Customer and its Authorized Users may access and use the Services and the Products Platform Provider shall use commercially reasonable efforts to provide the Services to Customer and its Authorized Users Services shall be provided consistent with generally accepted industry standards Access and use of the Services are pernutted by Platform Provider solely for Customer's internal use and benefit Any terms for the purchase of Engagement Hardware shall be set forth in the applicable Schedule Platform Provider may, in its discretion from time to time, without liability to Customer, revise, modify, update, limit or replace any Products or Services in whole or in part, provided the Products and Services are not adversely affected in any material manner and Platform Provider provides reasonable notice to Customer prior to the occurrence of any such event 3. Documentation Platform Provider shall provide Customer access to electronic versions of any applicable Documentation that Platform Provider makes generally available to its customers of the same Services and Products Customer may print and reproduce the Documentation provided that (i) the number of such copies is limited to those reasonably required for use by Customer, including, without [mutation, training and archival purposes, and (u) proprietary notices contained in the original copies of the Documentation are reproduced and included in all copies, whether such copies are made in whole or in part 4. Customer Responsibilities 41 Customer agrees to use the Products and Services in accordance with applicable laws and the Documentation provided by Platform Provider 42 Customer is responsible for assuring the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all data as it is entered or uploaded Platform Provider is not responsible for inability to perform Services due to Customer's use of improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software 43 Customer shall not transmit, store data that is subject to the rights of any third parties without first obtaining all required authorizations, consents, and/or rights in writing from such third parties, including the right to communicate with Authorized User' by electronic communication Customer shall ensure that its use of the Product complies with all laws directly or indirectly applicable to Customer and its Authorized Users Customer agrees to execute any and all documents and comply with any and all applicable procedures, rules and regulations which Platform Provider or applicable law may require in connection with the Products and Services, including without limitation, procedures, regulations, and rules, as may be amended from time to time, promulgated by American Express, MasterCard, VISA, Discover, various other payment networks, NACHA, the settlement bank, Page 1 4821-7578-6534 2 and insurance carers ("Association Rules") Customer also agrees to adhere to such rules and regulations as are required by governmental agencies having jurisdiction Customer agrees to not directly and knowingly engage in any activities in violation of federal or state anti -kickback laws PLATFORM PROVIDER IS NOT LIABLE OR RESPONSIBLE FOR ANY ACTS OR OMISSIONS IN RELATION TO CUSTOMERS' OR AUTHORIZED USERS' USE OF THE SERVICES OR PRODUCTS, INCLUDING WITHOUT LIMITATION USE OF THE SERVICES AND PRODUCTS IN WAYS THAT ARE NOT IN COMPLIANCE WITH LAWS 44 Customer understands that Customer may not process transactions on behalf of any other entity or individual and that the use of the Products and Services is provided herein as a service for a single Merchant account. Any attempt to use the Products and Services herein for more than one Merchant account without additional agreements and fees for each merchant or MID may result in additional fees and charges or the revocation of the service license and termination of this AgreemenL This service license is transferable and may be sold, traded, assumed or otherwise transferred to other individual or entity with the express written consent of Platform Provider S. Authorized Users Customer shall be responsible for ensuring Authorized Users' compliance with the terms set forth herein, the applicable laws or other agreements, all acts or orrussions by Authorized Users, and for any damages incurred as a result thereof Customer shall have sole responsibility for terminating the access previously granted to any Authorized User, whether for termination of employment, reassignment, or any other cause Platform Provider may disable an Authorized User's access to the Services at any time in its sole discretion if Platform Provider has reason to believe that such Authorized User poses a security risk. Customer is responsible for designating user IDs and passwords for any and all Authorized Users Customer agrees to hold all passwords, user IDs or other system access credentials and information under close control and shall notify Med immediately if access to such information is, or is thought to have been, released to any unauthorized party Customer agrees not to allow multiple users to access the Software using a common account or user credentials Security control of Axia-assigned user ID's and passwords are the sole responsibility of Customer and Platform Provider shall not be held responsible in any way for any breach in system security as a result of Customer's actions or inactions 6. User IDs Customer is solely responsible and liable for all activity occurring under the user IDs and passwords issued in connection with this Agreement whether or not such activities have been authorized by Customer Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services as contemplated by this Agreement, including those related to data privacy, international communications and the transmission of technical or personal data Customer shall (i) notify Platform Provider immediately in writing of any unauthorized use of any password or user ID or any other suspected or known breach of security, including the loss or theft of any password or user ID or computer or device containing such information, (ii) take all steps reasonably necessary to prevent access and use of the Services by unauthorized users, and (iii) not provide false identity information to gain access to or use of the Services or the Software 7. Payment Terms Customer shall pay the fees for the Products and Services as set forth in the Sales Agreement The fees and charges will either be debited from an account designated by Customer through ACH Customer agrees to -take any additional actions requested by Platform Provider to permit the ACH of the amounts owed to Platform Provider hereunder Platform Provider may change fees, including adding fees for additional services utilized by Merchant, upon thirty (30) days' written notice to Customer, provided, however, that the increase of any fees related to the increase to Platform Provider of third party fees shall not require notice 8. Taxes The fees and amounts specified to be payable by Customer hereunder do not include any sales, use, excise, value added, utility or other similar tax or charge which maybe or hereafter become applicable to the Services provided hereunder Customer is responsible for payment of any and all such taxes 9. Products At no time shall Customer utilize the Products or Services in any manner not consistent with Documentation or the terms herein, and shall not attempt to open any Engagement Hardware in any way Customer shall follow any and all instructions in relation to the operation of the Products To utilize the Services, Customer will be required to purchase Engagement Hardware and keep such Engagement Hardware in good working order Platform Provider shall not be responsible for any misuse, neglect or abuse of, tampering with or any external forces affecting the Engagement Hardware Customer shall be responsible for the purchase, installation and maintenance of any and all Engagement Hardware necessary for the provision of Services and to access the Software The Engagement Hardware shall be subject to a manufacturer's warranty as between Customer and the device manufacturer as administered by the manufacturer Platform Provider does not provide any warranties of any kind for the Engagement Hardware Title and risk of loss of the Engagement Hardware shall pass to Customer upon shipment Customer shall be responsible for all costs of insurance, taxes, storage, and transportation Platform Provider assigns to Customer any third party warranties and indemnities for the Engagement Hardware Customer's sole and exclusive remedy for the breach of any such third party obligations shall be against the applicable third party manufacturer or vendor, and not against Platform Provider 10. Telecommunications. Internet access For the avoidance of doubt, Platform Provider does not provide telecommunication or other wireless or internet services Customer is responsible for obtaining access to the Internet using appropriate equipment and for ensuring proper security of Customer's systems and access to the Services Customer agrees to process data using third party programs, including specifically internet "browser" programs that support appropriate data security protocols compliant with applicable laws Platform Provider makes no warranties of any kind and expressly disclaims in regard to the security and/or the services provided by any third party telecommunication or any wireless or internet provider Platform Provider shall not be responsible or liable for any failure for any failure, delay or deficiency in communications or transmission facilities, integration into third party software, infrastructure or Services 11. Improper Use Failure to comply with the terms of this Agreement or the Documentation may result in damage to the Products Platform Provider shall have no liability for damage or any losses to the extent that it resulted from Customer's gross negligence Page 2 4821-7578-6534 2 or willful misconduct or failure to comply with the terms of this Agreement, the Documentation, or any other written instructions provided by Platform Provider to Customer 12 Ownership Nothing herein shall be deemed to grant to Customer or any Authorized User any ownership interest in the Products, Documentation, or Services All Products, Documentation, Services and any derivative works based thereon, including any improvements, enhancements, modifications, updates, versions and releases, whether or not patentable or registered, will remain the exclusive property of Platform Provider (collectively, the "Platform Provider Materials") Platform Provider expressly reserves all rights to the Platform Provider Materials not specifically granted herein Customer shall not (i) attempt to assign the right to access or use the Products or Services to any third party, (ii) allow or authorize access to or use of the Products or Services to any persons other than Authorized Users, (iii) use the Products or Services for any purpose other than Customer's own internal business purposes, (iv) reverse engineer, disassemble or decompile the Products or Services or attempt in any fashion to obtain the source code to the Software, (v) knowingly use the Products or Services to send or store infringing or unlawful material or information, (vi) knowingly use the Products or Services to send or store material containing harmful computer codes, viruses, files, scripts, agents, or programs, (vu) interfere with or disrupt the integrity of the Products or the Software contained therein or Services or the data contained therein, or (vin) attempt to gain unauthorized access to the Software or Services or related systems or networks 13. Confidential Data The Products and Services enable Customer to transmit, store, and receive certain information relating to financial transactions for Customer and its Authorized Users (the "Services Data") The Services Data will include confidential information of Customer's Authorized Users State and federal laws, as well as ethical and licensure requirements, may impose obligations with respect to confidentiality and other obligations that may limit the right of Customers and persons acting on their behalf to make use of the Services or to transmit certain information to third parties Customer represents and warrants that it will, at all times during the term of this Agreement and thereafter, comply with all laws that are directly or indirectly applicable to that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Services Data It shall be Customer's responsibility to cause all persons or entities under its direction or control, including Authorized Users, to comply with any such applicable laws Customer, at all times during the term of this Agreement and thereafter, shall be solely responsible for obtaining and maintaining all legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Services Data transmitted, stored, or received in connection with the Services Customer agrees that Platform Provider and all other persons or entities involved in the operation of Services, have the right to monitor, retrieve, store and use Services Data in connection with the operation of the Services, and are acting on behalf of Customer in transmitting Data, and Platform Provider disclaims any obligations related to such Services Data PLATFORM PROVIDER IS NOT LIABLE OR RESPONSIBLE FOR ANY CUSTOMER ACTS OR OMISSIONS IN USING THE SERVICES IN WAYS THAT ARE NOT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR OTHER REQUIREMENTS OR CUSTOMER'S USE OR MISUSE OF DATA TRANSMITTED, MONITORED, STORED, OR RECEIVED 14. Equitable Relief The parties acknowledge that monetary remedies may be inadequate to protect rights in Confidential Information and that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights 15. Warranties and Disclaimers Subject to the limitations of this section and Sections 16 and 17 hereof and subject to such limitations as are expressly provided elsewhere in this Agreement, Platform Provider represents and warrants that Platform Provider has the legal right to perform the Services and provide Products to Customer and its Authorized Users, either itself or through third parties The Services provided by it hereunder shall be performed, in all material respects, in a professional, timely, and workmanlike manner In the event Customer believes Platform Provider has breached the warranty in the foregoing sentence, Customer shall promptly notify Platform Provider thereof including information necessary to allow Platform Provider to examine the issue and to re -perform any Services containing reproducible errors THE SERVICES AND PRODUCTS ARE PROVIDED TO CUSTOMER ON AN "AS IS," WITH ALL FAULTS BASIS PLATFORM PROVIDER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE EXCEPT FOR THE EXPRESS WARRANTIES AND COVENANTS HEREIN PLATFORM PROVIDER MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES DATA OR THE SOFTWARE IS ACCURATE, COMPLETE, OR RELIABLE PLATFORM PROVIDER FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES THAT CUSTOMER'S ACCESS TO AND USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR -FREE, FREE OF VIRUSES, UNAUTHORIZED CODE, OR POTENTIALLY HARMFUL COMPONENTS, WITHOUT DELAY, OR SECURE For the avoidance of doubt, Platform Provider makes no warranties of any kind in regard to the services provided by any telephone company or other telecommunications provider Platform Provider shall not be responsible for any failure of any telecommunications provider however constituted or described Some jurisdictions do not permit the exclusion or limitation of implied warranties Therefore, only if required by applicable law, some or all of the exclusions or linutations above may not apply 16 Exclusion of Damaees. IN NO EVENT SHALL PLATFORM PROVIDER BE LIABLE TO CUSTOMER FOR ANY INDIRECT, NON -COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR REVENUE, LOST SAVINGS, LOSS OF DATA OR BUSINESS OPPORTUNITY, ANY GOVERNMENTAL, AGENCY, AND/OR REGULATORY FINES OR COSTS, OR OTHER DAMAGES ARISING OUT OF OR iN CONNECTION WITH THE FURNISHING, PERFORMANCE, OR USE OF THE SERVICES OR ENGAGEMENT HARDWARE, OR ERRORS, INACCURACIES, OMISSIONS, DEFECTS, UNTIMELINESS, SECURITY BREACHES, OR ANY OTHER FAILURE TO PERFORM BY PLATFORM PROVIDER OR Page 3 4821 7578 6534 2 ANY THIRD PARTY SOFTWARE PROVIDERS THE FOREGOING EXCLUSION SHALL APPLY WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH IN THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE Some jurisdictions do not permit the exclusion of certain types of damages Therefore, only if required by applicable law, some or all of the exclusions above may not apply 17. Limitations of Liabdity EXCEPT FOR THE EXPRESS WARRANTIES AND COVENANTS HEREIN, CUSTOMER EXPRESSLY WAIVES AND SHALL NOT MAKE ANY CLAIM OF ANY KIND AGAINST PLATFORM PROVIDER ARISING OUT OF THE FAILURE OF PERFORMANCE OF THE PRODUCT, THE SERVICES OR THE PAYMENT FUSION PLATFORM, PAYMENT TERMINALS OR THE GATEWAY OR ARISING OUT OF THE BREACH OF ANY WARRANTY PROVIDED BY PLATFORM PROVIDER, OR THE MANUFACTURER OF EQUIPMENT iF, DESPITE THE OTHER TERMS OF THIS AGREEMENT, PLATFORM PROVIDER HAS ANY LIABILITY TO CUSTOMER FOR ANY LOSS, HARM OR DAMAGE, THE PARTIES AGREE THAT AXIA'S LIABILITY TO CUSTOMER OR ANY OTHER PERSON UNDER OR RELATED TO ANY AND ALL SUCH LOSSES, HARMS, OR DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND RECEIVED BY PLATFORM PROVIDER SPECIFICALLY FOR THE SERVICES (EXCLUDING THIRD PARTY PASS-THROUGH FEES OR EXPENSES) PROVIDED PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTHS PRIOR TO THE FIRST OCCURRENCE GIVING RISE TO THE CLAIM FOR LIABILITY THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREIN CUSTOMER ACKNOWLEDGES THAT, ABSENT ITS AGREEMENT TO THIS LIMITATION OF LIABILITY, PLATFORM PROVIDER WOULD NOT PROVIDE THE SERVICES TO CUSTOMER 18. Indemnification Platform Provider shall defend and hold harmless Customer and its Affiliates, officers, directors and employees harmless from any claim that the use of the Services violates or infringes any third party's patent, copyright, trade secret or any other intellectual property rights Customer shall give Platform Provider prompt notice of any such claim, shall cooperatc fully with Platform Provider in its defense of the claim, and Platform Provider shall have sole control of the defense and settlement of any such claim Should the Services hereunder be made the subject of any claim alleging misappropriation or infi-ingement of any patent, copyright, trade secret, trademark or other intellectual property rights of any third person, Axia's sole liability shall be, at its option, to procure the right to use Services free of such liability or to replace or modify the Services to be non -infringing In the event that neither of the foregoing options are commercially reasonable in Axia's sole discretion, Platform Provider shall have the right to terminate this Agreement without further obligation and shall return to Customer any prepaid fees for Services not yet rendered Platform Provider shall have no obligation to defend or indemnify Customer for any claim ansing from Customer's use of the Services Inconsistent with its Documentation or in combination with any software not provided or approved by Platform Provider 19. Term This Agreement shall be effective on the Effective Date as set forth on the applicable schedule and shall continue for an initial term of three (3) years (the "Initial Term"), and shall continue thereafter for successive additional one-year terms (each a "Renewal Period" and together with the Initial Term, the "Term") unless either party hereto provide written notice to the other of its intent not to renew at least sixty (60) days prior to the end of the then -current Term Either party may terminate this Agreement immediately upon written notice to the other if the other party (i) materially breaches this Agreement and fails to cure such breach within thirty (30) days following written notice thereof, or (u) becomes or is declared insolvent or bankrupt, commits an act of bankruptcy, or is subject to any proceeding in bankruptcy, receivership, liquidation or insolvency Platform Provider shall have the right to terminate this agreement for any or no reason at any time 20. Effect of Termination Upon termination or cancellation (a) all rights granted hereunder shall terminate and Customer must immediately cease using the Services and accessing the Software for any purpose, (b) Customer shall de -install and destroy all copies of Software (including any Documentation) in its possession or under its control, and (c) Customer shall immediately pay to Platform Provider for all amounts due through the effective date of termination or cancellation as well as the amounts due, which Customer would be expected to pay, for the remaining portion of the Term, based on the average fees paid in the previous six (6) full months of active processing If Customer has been using Services for less than six (6) months then the average will be taken from the number of full active months that Customer has been using Services 21. Survival Termination of this Agreement shall not affect the respective rights and responsibilities of the Parties to the extent that they arose prior to such termination 22. Assienment Neither this Agreement, nor any of the rights or duties set forth herein, may be assigned by Customer without the prior written consent of Platform Provider, which may be withheld for any reason or no reason Any such purported assignment shall be null and void Notwithstanding the foregoing, Customer may assign any of its rights and obligations under this Agreement, in whole or in part, without Axia's consent, to a successor entity as part of a merger, acquisition, internal reorganization or other change of control Platform Provider may assign any of its rights and obligations under this Agreement, in whole or in part, without Customer's consent This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and permitted assigns 23. Independent Contractors The Parties are independent contractors This Agreement does not designate either party as the agent, employee, legal representative, partner or joint venturer of the other party for any purpose whatsoever and neither shall have the right, power or authority to create any obligation or responsibility on behalf of the other Each party shall be fully liable for the acts and omissions of their employees, subcontractors, and agents hereunder 24. Force Maieure Platform Provider shall not be in breach of this Agreement to the extent nonperformance is due to causes beyond the control and without the gross negligence or willful misconduct of Platform Provider Such causes may include, but are not restricted to, acts of God, acts of a public enemy, acts of the goverment in either its sovereign or contractual capacity, fires, floods, terrorism, network or communications events, or strikes (each, a "Force Majeure Event' ) Page 4 4821 7578 6534 2 25. Customer Indemnification Customer will indemnify, defend and hold harmless Platform Provider, any subcontractor of Platform Provider, and any service provider related to the Products and Services and their respective officers, directors, agents, and employees, against all liabilities, damages, costs, expenses (including attorneys' fees), claims, losses arising from or related to (1) breach of the terms of this Agreement or the Documents, (2) unauthorized or unlawful use of the Services, (3) the unauthorized or unlawful use of the Services by any unauthorized person, (4) any inaccurate or incomplete data provided to Platform Provider in the performance of Services, or (5) any gross negligence or willful misconduct by Customer, Authorized Users, or their respective agents, officers, directors or employees 26. Governs Law, Venue This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without regard to its conflict of laws provisions 27. Notices All notices required or permitted under this Agreement shall be in writing and delivered via an internationally recognized overnight couner (for next business day delivery, receipt requested), or certified mail (return receipt requested), or in person to the other party at its address(es) set forth herein, or to such other address as either party may designate subsequently in writing, and shall be deemed effective upon receipt 28. Entire Aereement, Amendment The Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the transactions contemplated hereby, and supersedes all prior agreements, arrangements, or understandings relating to the subject matter hereof This Agreement maybe amended by Platform Provider at anytime upon written or electronic notice to Customer of not less than ten (10) days prior to the effective date of such amendment 29. Riehts Cumulative, Waiver All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently The failure by either party to enforce any term of this Agreement shall not be deemed to be a waiver of future enforcement of that or any other term of this Agreement 30. Counterparts This Agreement may be executed in any number of separate counterparts, each of which shall be deemed to constitute an original, but which together shall constitute one and the same instrument 31, Severabdity In the event that any provision hereof is prohibited or unenforceable in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or unenforceability of such provision in any other jurisdiction Page 5 4821 7578 6534 2 Paradigm Software has partnered with Axia Payments to provide an integrated payment technology solution that provides greater effectiveness and the highest level of PCI -DSS security. This is accomplished by working closely with Paradigm Software to design security compliance, services and features geared towards the unique needs and priorities of their clients. The Axia I Paradigm Software program is based on the following objectives and benefits: Integr:at,cr! • Seamless technology allowing users to process transactions directly from the Paradigm Software interface • Rapid account set up so you can start processing transactions immediately Elite 5e vice • Reliable, committed quality service and support desk with highly trained technical professionals - available 2417 • Unparalleled response times from in-house support teams that are able team up together to quickly resolve any issues • Easy to read monthly merchant statements for simplified reconciling with bank statements • Free online access to monthly statements, transaction history, daily batch details, and deposits Premier Security • Patented technology to take your business out of PCI DSS scope - this means the sensitive credit card information never actually touches your computer and significantly reduces the chance of a Data Breach • Specific fees waived for Paradigm Software clients only • Highest level of compatibility and security providing full functionality and peace of mind • EMV (Chip & PIN) card ready solutions to comply with October 1 V Visa / Mastercard fraud liability shift Rate Structure Visa/MC/Disc/AMEX Discount Rate Authorization Fee Setup Fee Application Fee Gateway Per Item Fees Gateway Monthly Service Fee Statement Fee Payment Fusion Monthly Fee Interchange Pass Through 0.20% $0.13/authorization $30/merchant ID (One -Time); $25/terminal (One -Time) $15/merchant ID $0.065/authorization $10/merchant ID $5/merchant ID $10/terminal This quote is valid for 30 days. CONFID`i4T!ALLY P,epareo fog Jefferson County Solid Waste - _ - By� Joseph Krueger ra�P 01/28/2016 v Amaa- H.W� Cmivuerce Sohrbom Pricine w/o Merchant Processine Ingemco iSC250 (Sig Capture) $669/terminal One Time Terminal Setup Fee $25/terminal One -Time Gateway Setup Fee $30/merchant ID Gateway Monthly Fee $10/merchant ID Payment Fusion Monthly License $19/terminal Transaction Fee $0 09/authonzauon Payment Fusion & Gateway Breakdown w/o Merchant Processing Per Item Trans # Fee Amount Monthly Recap Gateway Monthly Fee $1000 1 $1000 Payment Fusion Monthly Fee S1900 1 $1900 Transaction Fee $009 2083 S18747 Total Payment Fusion Quotation Jefferson County Solid Waste Processing Month December 2015 Discounted Pricine with Merchant Processme Ingemco iSC250 (Sig Capture) $669/temunal One Time Terminal Setup Fee $25/termmal One Time Gateway Setup Fee $30/merchant ID Gateway Monthly Fee $10/merchant ID Payment Fusion Monthly License $10/terminal Transaction Fee $0 065/authonzation Discounted Payment Fusion & Gateway Breakdown with Merchant Processing Per Item Trans # Fee Amount Monthly Recap Gateway Monthly Fee per MID $1000 1 $1000 Payment Fusion Monthly Fee $1000 l $1000 Transaction Fee $0065 2083 $13539 $21647 Total Difference/Savings: Proposed pricing is based off transaction information provided Jefferson County Solid Waste for the month of December 2015 This quote is valid for 30 days Confidentially Prepared for Jefferson County Solid Waste By Joseph Krueger Date 1/28/2016 $155.39 $6108