36.1.3. Chargeback Process. Regardless of whether you respond to a Transaction Documentation Request, a Chargeback may be debited to your Settlement Account for numerous reasons (see below). If the Card Issuer submits a Chargeback, we will send you a Chargeback notification, which may also include a request for transaction documentation. Due to the short time requirements imposed by Mastercard, Visa, Discover, PayPal and American Express, it is extremely important that you respond to a Chargeback notification and Transaction Documentation Request within the time frame set forth in the notification. Do not process a credit transaction once a Chargebackis received; the Issuer will Credit the Cardholder’s account. Credits issued after a Chargeback has been received, may not be recoverable and you may be financially responsible for the Credit as well as the Chargeback. If the information you provide is both timely and, in oursolediscretion,sufficientto warrant a representmentof thetransactionand/orreversalof theChargeback, wewilldosoonyourbehalf.However,representmentand/orreversal is ultimately contingent upon the Card Issuer and/or Cardholder accepting the transaction under applicable Card Organization guidelines.
Representment or reversal is not a guarantee that the Chargeback has been resolved in your favor.
For American Express Chargebacks: You may request a Chargeback reversalif theChargebackwasappliedin error.In order for us to consider your request,youmust haverespondedto the originalinquiry within the specifiedtimeframe,requestthe
Chargeback reversal no later than 20 days after the date of the Chargeback, and provide all supporting documentation to substantiate the error.
Note: Discover and American Express do not offer good faith collection for Acquirers.
Mastercard and Visa Card Organization Rules require that a merchant make a good faith attempt and be willing and able to resolve any disputes directly with the Cardholder. Discover rules and regulations, however, prohibit you and/or us from contacting the Cardholder directly regarding dispute(s) or any other matter, except as required for acceptance of Discover transactions, and require you and/or us to submit any responses to dispute notices directly to Discover.
Due to Card Organization Rules, you may not re-bill a Cardholder after a Chargeback is received for that transaction, even with Cardholder authorization.
For Visa Chargebacks: If we reverse the Chargeback and represent the transaction to the Issuer, the Issuer, at its sole discretion, may elect to submit the matter for arbitration before Visa. Visa currently charges a $250 filing fee and a $250reviewfee.Whether or not a decision is made in your favor, you will be responsible for all such fees and charges, and any other applicable fees and charges imposed by Visa, as they may change from time to time. Such fees and charges will be debited from your Settlement Account or settlement funds, in addition to the Chargeback.
Westrongly recommend that youinclude a detailed rebuttal letter along withallpertinentdocumentswhenrespondingtoa transactionrequestor a Chargebacknotification (e.g.,rentalagreement,imprinted portion of the invoice or Sales Draft; the portion signed by the Cardholder; and the area wheretheauthorizationcodes,withamountsanddates,arelocated).
Due to the short time frames and the supporting documentation necessary to successfully (and permanently) reverse a Chargeback in your favor, we strongly recommend the following:For STAR Chargebacks: If we reverse the Chargeback and re-present the transaction to the Card issuing bank, the Card issuing bank, at its sole discretion,mayelectto submitthe matterfor arbitration beforeSTAR.
Whether or not a decision is made in your favor, you will be responsiblefor all fees and charges relating to that arbitration and any other applicable fees and charges imposed by STAR. Such fees and charges will be debited from your Settlement Account or Settlement funds in addition to the Chargeback.
• Avoid Chargebacks by adhering to the guidelines and procedures outlined in these OperatingProcedures.
• If you do receive a Chargeback, investigate, and if you dispute the Chargeback,submittheappropriatedocumentation withintherequired timeframe.
•Whenever possible, contact the Cardholder directly to resolve the dispute, unless the dispute relates to a Discover Cardholder, in which case direct contact with the Discover Cardholder regarding the dispute is prohibited by their Card OrganizationRules.
ForMastercard Chargebacks: If we reverse the Chargebackand represent the transaction to the Card Issuer, at its sole discretion, may elect to resubmit the Chargeback. In such event, at the discretion of Processor, we will debit your Settlement Account or settlement funds for the Chargeback.
However, if you feel strongly that it is an invalid Chargeback, we may, on yourbehalfandatyourrequest,submitthematterforarbitrationbefore •If you have any questions, call Customer Service.
36.1.4. Chargeback Reasons. This section outlines the most common types of Chargebacks. This list is not exhaustive. For ease ofunderstanding, WFB2210(Rev00-10/19) 51
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 • Provideproperdisclosureofyourrefundpolicyforreturned/cancelled merchandise, or services to the Cardholder at the time of transaction in accordancewithapplicablelaw.
we have combined like Chargebacks into six groupings. We have included recommendations on how to reduce the risk of Chargebacks within each group. These are recommendations only, and do not guarantee that you will be able to prevent Chargebacks. •Card present, Cardholder signed the Sales Draft containing disclosure.
1. Authorization Issues: Proper Authorization procedures were not followedandvalidAuthorizationwasnotobtained.
• If applicable, the words “NO EXCHANGE, NO REFUND,” etc. must be clearly printed in ¼ inch letteringon the SalesDraftnear or above the Cardholder signature.ThefollowingscenarioscouldcauseanAuthorizationRelated Chargeback to occur: •Ecommerce,provide disclosureon website on same page as check out showing Cardholder must click to acceptprior to completion.• Authorization notobtained. • Authorization wasdeclined. • Card Not Present, provide cancellation policy at the time of the transaction.
• Transactionprocessedwithan expiredcardandAuthorizationwasnot obtained. • Provide cancellation numbersto Cardholder’s when lodging servicesare cancelled.
• Transactionwasprocessedwithan invalidaccountnumber and Authorization was notobtained. • Ensuredeliveryof themerchandiseor servicesorderedto the Cardholder.
• Card Recovery Bulletin (CRB) or Exception File was not checked (transactionsbelowfloorlimit). 3. Fraud: Transactions that the Cardholder or authorized user claims are unauthorized; the accountnumber is no longer in use or is fictitious, or the merchant was identified as“highrisk”.To reduce your risk of receiving an Authorization Related Chargeback: The followingscenarios could causea FraudRelatedChargebackto occur:• Obtain valid Authorization on the day ofthe transaction. • CardPresentTransactions-Authorizationmust be obtained on the transactiondatefortheamountsettled.
•Multipletransactionswerecompletedwitha singlecardwithoutthe Cardholder’spermission.
• Card Not Present Transactions-Authorization must be obtained on the transaction date for the amount settled. However, if merchandise is being shipped,Authorization must be obtained within seven calendar days of the transaction shipdate.
•Counterfeitcardwasutilizedandproperacceptanceprocedureswere not followed.
• Authorizationwasobtained;however,fulltrackdatawasnottransmitted. • Cardholder states thatthey did notauthorize or participate in the transaction.
• If a declined responseisreceived,then request another form of payment from theCardholder.
NOTE: Visa Fraud:• If a Referralresponseisreceived,thenfollowpropervoiceproceduresto obtain a valid Authorization and obtain an imprint of the card • Complete a retrievalrequestand/orprovidea salesslip thatcontainsall requireddataelements;and• “Pick-up” responseindicatesthatthe Issuer is requesting for the card to be retained and returned back to them. The Credit Card should not be accepted forpayment.Alternatively,youshould call the appropriate payment organization’s Customer Service team via the number below or the number printed on the back of the Card and they will instruct you on howtohandleit..
• Respond to all retrieval requests with a clear legible copy of the transactiondocumentthatcontainsallrequireddataelementswithinthe specifiedtimeframe.
To reduce your risk of receiving a Fraud Related Chargeback:
Card Present Transactions:.
• Merchantsshouldnotexceedanypredetermined thresholdsfor specific terminal types as specified by each Card Organization. • Pre-notifytheCardholderofbillingswithin10 days. • American Express customers have the option to receive written notification of the recurring transaction at least (10) days prior to submitting, or any time the Charge amount exceeds a maximum amount that has been set by the cardholder.
2. Cancellations and Returns: Credit was not processed properly or the Cardholderhascancelledand/orreturneditems.
The following scenarioscouldcausea Cancellation and Return Related Chargeback to occur:
• Obtain an Authorization for alltransactions.
• Cardholderreceiveddamagedor defective merchandise.
• Cardholder continued to be billed for cancelled recurring transaction. • Credittransactionwasnotprocessed.
• If you are utilizing an electronic device to capture Card data information, swipe all Card transactionsthroughyour electronic authorization device to capture Cardholder information and ensure the displayed Cardholder number matches the number on the Card.Toreduce your risk of receiving a Cancellation and Return Related Chargeback: •Youshould avoid keying the Card data into your electronic authorization device unless you are unable to capture the Card data through one of the above methods. If you do not key the Card data into your electronic authorization device, it is highly recommended that you also key in the 3 or 4 digit Verification Code. Otherwise, you should imprint the card using a valid imprinting device that will capture the embossed Card and merchant information. Do not alter the imprint on the draft in any way. Manually entering the information into the terminal does not protect you from this type of Chargeback. All pertinent information relating to the transaction must be written on the manually imprinted draft (transaction date, dollar amount, authorization code and merchandisedescription) along with the Cardholder signature.
• Issue Credit to the Cardholder for the same account as the purchase in a timelymanner.
• Do not issue Credit to the Cardholder in the form of cash, check or instore/merchandiseCreditas we may not be able to recoup your funds in the event the transaction is charged back.
• Ensure customers are fully aware of the conditions for recurring transactions. Cancel recurring billings as soon as notification is received from the Cardholder or as a Chargeback, and Issue a Credit as needed to thecardholderin a timelymanner.
• Pre-notify the Cardholder of billings within 10 days(Domestic) and 15 (International) prior to billing, allowing the Cardholder time to cancel the transaction.
Note: Do not imprint on the back of a signed Sales Draft. The imprint must be on the transaction document that contains all transaction WFB2210(Rev00-10/19) 52
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 • In the event that the cardholderreceiveddefective merchandiseor the merchandise received was not as described; resolve the issue with the cardholderatfirstcontact.
elements to prove the Card was present at the time of the transaction. • Obtain the Cardholder signature for all transactions; ensure the signature on the Sales Draft matches the signature on the back of the Card. • If the merchandise is being picked up by the Cardholder, have them sign for the merchandise after inspection that it was received in good condition.
• Process all transaction one time and do not Batch out transactions multipletimes.
• Educate staff on procedures to eliminate point of sale (POS) fraud.
Card Not Present Transactions:
• Participationin recommendedFraudPreventionTools.
• Verified by Visa Program.
•Do not Charge the Cardholder until the merchandise has been shipped, ship according to the agreed upon terms and obtain signed Proof of Delivery from theCardholder.
• If unableto provideservicesor merchandise,issuecreditto cardholder in a timelymanner.
• Mastercard SecureCode. • Acceptonly one form of paymentper transaction and ensure the cardholderisonly billed once pertransaction.• Discover ProtectBuyProgram. • American Express SecureKeyProgram.
• Address Verification Services.
• Do not bill Cardholder for loss, theft or damages unless authorized by theCardholder.
5. Processing Errors: Error was made when transaction was processed or itwasbilledincorrectly.
• Use of Card Verification Code.
Note: While transactions utilizing these tools may still be disputed, the service may assist you with your decision to accept the Card for the transaction.
The following scenarios could cause a Processing Error Chargeback to occur:
• Transaction was not deposited within the Card Organization specified timeframe.
• Ensure you ship to the AVSconfirmed address (bill to and ship to shouldmatch).
• Cardholderwasissue a CreditDraft; however,the transactionwas processed as a sale.
• Obtain Authorization for alltransactions.
• Ensure merchantdescriptor matchesthe name of the businessand is displayedcorrectlyon the Cardholderstatement. •
Transactionwasto be processedin a currencyotherthanthecurrency usedto settlethetransaction.• Ensuredescriptorincludescorrectbusinessaddressanda valid customerservicenumber. •The accountnumber or transaction amountutilized in the transaction was incorrectly entered.
• American Express offers fraud mitigation tools for both Card Present and Card Not Present transactions to help verify that a Charge is valid.
These tools help you mitigate the risk of fraud at the point of sale, but are not a guarantee that a Charge is in fact valid or bona fide, or that you will not be subject to a Chargeback. For optimal use of the tools, please visit AmericanExpress’FraudPreventionInformationat:www.americanexpress. com/fraudinfo.
•A single transaction was processed more than once to the Cardholders account.
•Cardholderinitially presented card as payment for the transaction; howeverCardholderdecidedto use an alternate form of payment. • Limitedamountor self-serviceterminaltransactionwasprocessedfor anamountwhichisoverthepre-determinedlimit.
4. Cardholder Disputes: Merchandise or services not received by the Cardholder,Merchandisedefective or notasdescribed. To reduce your risk of receiving a Processing Error Related Chargeback:
The following scenarios could causea CardholderDispute
Chargeback to occur:
• Process all transactions within the Card Organization specified timeframes.
• Serviceswerenotprovidedor merchandise was not received by the Cardholder.
• Ensure alltransactionsareprocessedaccuratelyand only one time.
Note: In the event that a transaction was processed more than once; immediately issue voids, transaction reversals or Credits.• The Cardholder was charged prior to merchandise being shipped or merchandisewasnotreceivedbyagreedupondeliverydateor location. • Ensure thatcredittransaction receiptsare processedas Credits and sale transactionreceiptsareprocessedassales.• Cardholder received merchandise that was defective damaged or unsuited for the purpose sold,or did not match the description on the transactiondocumentation/verbaldescriptionpresentedatthetimeof purchase.
• Ensure all transactions received a valid Authorization Approval Code prior to processing the transaction and obtain a legible magnetic swipe or imprinted Sales Draft that is signed.
• Cardholder paid with an alternate meansand their Card was also billed forthesametransaction. • Do notaltertransactiondocumentation or makeanyadjustmentsunless the Cardholder has been contacted and agrees to any modifications of the transactionamount.• Cardholder cancelled service or merchandise and their Card wasbilled. • Cardholder billed for a transaction that was not part of the original transactiondocument. • Ensurelimitedamount,self-serviceandautomatedfueldispenser terminalsaresetproperlytoconformtothepre-determinedlimits.
To reduce your risk of receiving a Cardholder Dispute Related Chargeback: Chargebacks due to non-receipt of information Description:
• Thetransactiondocumentationwasnotprovidedto fulfilltheretrieval request.• Provide Services or Merchandise as agreed upon and described to the cardholder;clearlyindicatetheexpecteddeliverydateon thesalesreceipt or invoice. •Theretrievalrequestwasfulfilledwithan illegiblesalesdraftor wasan invalid fulfillment (incorrect sales draft or the sales draft did not contain requiredinformationthatmayincludesignature).• Contact the cardholder in writing if the merchandise or service cannot be provided or is delayed, and offer the cardholder the option to cancel if yourinternalpoliciesallow. •The Cardholderdoes recognizeor is unfamiliar with the transaction WFB2210(Rev00-10/19) 53
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 American Express, and TeleCheck Services), you are also responsible for contacting the Card Organizations or companies governing those Cards to notify them of this change.
due to the merchant name and/or location not matching the name and/or location where the transaction took place.
Recommendations to reduce such risk of Chargebacks: 37.2. Change in Your Legal Name or Structure. You must call Customer Service or your Account Manager and request a new Agreement.• Provide a clear and legible copy of the sales draft that contains all requireddataelementswithintherequiredtimeframethatisspecifiedon the retrieval request. 37.3. Change in Company DBA Name, Address or Telephone/ Facsimile Number. Tochange your company or location DBA name, address(ore-mailaddress),ortelephone/facsimilenumber,youmustsend therequestinwritingtotheaddressonyourstatement.
• Ensure that the mostrecognizablemerchantname,location and/or Customer Service phone number is provided on all transactions. • Retain copies of alltransactiondocumentation for the required timeframe that is specified by eachpaymentorganization.
37.4. Other Change(s) in Merchant Profile. You must immediately notify us of any change to the information on file with us in your merchant profile, including: (i) any new lines or types of business; (ii) change in ownership; (iii) the opening, closing or liquidation of business or any location; (iv) change in Card processing method (i.e., paper Sales Drafts to POS Device); (v) voluntary or involuntary party to a bankruptcy case; (vi) entry into a loan or other agreement with a third party that seeks to affect this Merchant Agreement; and/or (vii) change from a business that exclusively conducts card-present retail sales to one that accepts Card sales by mail, telephone or Internet transactions. Weretain the right to terminate this Agreement if you fail to notify us of any change to the information in your merchant profile.
• Developefficientmethodsto retrievetransactiondocumentation to maximizeabilityto fulfillrequest.
36.2. Summary (Deposit) Adjustments / Electronic Rejects.
Occasionally, it is necessary to adjust the dollar amount of your summaries/Submissions (deposits) and Credit or debit your Settlement Account or settlement funds accordingly. The following is a list of the most frequentreasonsforSummary(Deposit)Adjustments/ElectronicRejects:
• Yoursummaryreflectedanarithmeticerror.
• Submitted sales not included in your Agreement (e.g., American Express). 37.5. Charges for Changes to Account Maintenance. You may be charged for any changes referenced in this section or any other changes requestedbyyouorotherwisenecessaryrelatedtoaccountmaintenance. • The dollar amountis unreadable/illegible.
• The Cardholder’saccount number is unreadable/ illegible. • Duplicate Sales Draft submitted. 38. Card Organization Monitoring Mastercard, Visa and Discover, PayPal and American Express have established guidelines, merchant monitoring programs and reports to track merchant activity such as, but not limited to excessive Credits, reported fraud and Chargebacks, and increased deposit activity. In the event you exceed the guidelines or engage in practices that could circumvent such monitoring programs or submit suspicious transactions as identified by a Card Organization or any related program or reports, you may be subject to: (i) operating procedure requirement modifications; (ii) incremental Chargebacks and/or increased fees; (iii) settlement delay or withholding; (iv) terminationof yourAgreement;or (v) audit and imposition of fines. • Card number isincorrect /incomplete.
• Summary indicated Credits, but no Creditswere submitted.
36.3. Disputing Other Debits and Summary Adjustments. In order to quickly resolve disputed debits and Summary Adjustments, it isextremely important that the items listed in this section be faxed or sent to the addresslistedon thenotification.
If the Summary Adjustmentis for an unreadable or incorrectCardholder accountnumber,resubmitthecorrectedSalesDraftwithyournextdeposit.
Also, if the transaction is over thirty (30) calendar days old, you must reauthorize and obtain a valid Authorization ApprovalCode. 39. Supplies Placing Orders.A clear and legible copy of the Sales Draft containing the following should be obtained from your files: •Toorder additionalsupplies,callCustomer Service or order through the customer service IVR when you have two months’ inventory left. We will ship you an adequate amount of supplies. The amount of supplies (based on usage) on hand should not exceed a three to six-month supply. • Date of sale/Credit;
• Cardholder’saccountnumber,name and signature;
• Totalamount of the sale and description of goods and services; and • Date and Authorization Approval Code.
• In an EMERGENCY, please contact Customer Service using the number provided on the last page of this Program Guide. If supplies are sent via an expressdeliveryservice,thedeliverychargeswillbe debitedto your account.Include a dated cover letter detailing the reasons for requesting a review of the debit or Summary Adjustment and documentation to support your dispute. (You should retain a copy of the correspondence and all documentation for your files.) If the inquiry is related to prior correspondence,besureto includethecontrolnumberwepreviouslyused. • Youareresponsibleforunauthorizeduse of sales/creditandsummary Media. Werecommended that you store all supplies in a safe location. • You may becharged for supplies and taxes plus applicable Immediately fax or mail the Sales Draft or Credit Drafts to the fax number or address provided on your notification letter. shipping and handling charges.
40. Special Provisions for American Express
If you have any questions, please call the Customer Service number provided on the last page of this Program Guide. If a Customer Service Representative informs you that additional documentation is required in orderto fullyreviewtheitem,pleaseimmediatelysubmityourrebuttaland transactiondocumentation to the fax number or addresslistedon thedebit notification.
The provisions in this Section 40 apply to American Express Card acceptance and Transactions.
40.1. Treatment of the American Express Brand. Except as expressly permittedbyapplicablelaw,youmustnot:
•indicateor implythatyouprefer,directlyor indirectly,anyother paymentproductsover the Card,37. Account Maintenance
• try todissuade Cardholders from using the Card,37.1. Change of Settlement Account Number. If you change the Settlement Accountin which youreceive the proceeds of your transactions, you must call Customer Service or your Account Manager immediately. If you accept payment types other than Visa, Mastercard, Discover, PayPal and American Express (such as where you have a directrelationship with criticize or mischaracterize the Card or any of American Express’• servicesorprograms,
• try to persuadeor promptCardholderstouseanyotherpayment WFB2210(Rev00-10/19) 54
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 confidential and the sole property of the Issuer, American Express or any of its Affiliates. Except as otherwise specified in the Agreement, you must not disclose Cardholder information,nor use nor store it, other than to facilitate transactionsat yourestablishmentsin accordancewiththeAgreement. products or any other method of payment (e.g., payment by check), • impose any restrictions,conditions,disadvantagesor feeswhen the Card is accepted that are not imposed equally on all other payment products,exceptforelectronicfundstransfer,or cashandcheck,
40.6. Disclosure and Use of Data Collected Under Agreement.
We may disclose to American Express data and information that you provide on your Application and that we collect as part of performing American Expresspaymentprocessing services or transactionrelated services including information about you. American Express mayuse the information that you provide in the Application at the time of setup to screen and monitor your American Express acceptance, to perform its responsibilities in connection with your American Express Card acceptance to respond to court orders and legal investigations, and to perform analytics and create reports for our and American Express’s internal purposes, and for any other lawful business purposes, including marketing purposes. American Express may otherwise use and share your information for business purposes and as permitted by Applicable Law.
American Express uses reasonable administrative, technical and physical security measures to protect Program Merchant information consistent with the sensitivity of the information.
• suggestor require Cardholdersto waivetheir rightto dispute any transaction,
• engage in activities that harm the American Express business or the AmericanExpressBrand(orboth),
• promote any other payment products (except your own private label card that you issues for use solely at your establishments) more actively than youpromote the Card, or
• convertthecurrencyof theoriginalsaletransactionto anothercurrency whenrequestingAuthorizationorsubmittingtransactions(orboth).
You may offerdiscountsor in-kind incentivesfromyour regularpricesfor payments in cash, ACH funds transfer, check, Debit Card or Credit Card, provided that (to the extent required by applicable law): (i) you clearly and conspicuously disclose the terms of the discount or in-kind incentive to yourcustomers,(ii) thediscountor in-kindincentiveisofferedto all of your prospective customers, and (iii) the discount or in-kind incentive does not differentiateon the basis of the issuer or, except as expresslypermitted by applicable law and Card Organization (e.g., Visa, Mastercard, Discover, JCB, American Express). The offering of discounts or in-kind incentives in compliance with the terms of this section will not constitute a violation of the provisions set forth in the above section “Treatment of the American Express Brand.”
40.6.1. Consent for American Express to Contact You by Phone, eMail, Text or Facsimile. American Express may use the information you provide in the Application (as such information may be updated) to call you or send you communications or materials via email, SMS, text or facsimile regarding American Express products, services and resources available to you. These messages may be sent to the mailing address, phone numbers, email addresses or fax numbers that you provide. You consent and agree to receive autodialed, automated and/or prerecorded calls and communications (which may include SMS or text messages) at the telephone number(s)youhaveprovided. If you provide a faxnumber, you consent and agree to receiving fax communications from American Express. In connection with the foregoing, you understand that the calls made or communications sent to you by American Express may be subject to charges or fees by your telecommunications or other applicable service provider that are your responsibility to pay. You understand that your consent under this Section 40.6.1 is not a condition of purchasing or receiving any product or service or entering into this Agreement.
40.2. TreatmentoftheAmericanExpressMarks.
Wheneverpaymentmethodsarecommunicatedto customers,or when customers ask what payments are accepted, you must indicate your acceptance of the Card and display American Express’ Marks (including any Card application forms provided to you) as prominently and in the same manner as any other payment products. You must not use the American Express Marks in any way that injures or diminishes the goodwillassociatedwiththeAmericanExpressMarks,nor(withoutprior writtenconsentfromProcessor)indicatethatAmericanExpressendorses your goods or services. You shall only use the American Express Marks as permitted by the Agreement and shall cease using American Express’ Marksupon termination of the Agreement.
40.6.2. Opt-Out: You may opt-out of receiving marketing related communications and materials from American Express by calling Processor at the Customer Service number indicated in the Program Guide and indicating that you no longer want to receive marketing or other communications from American Express, in which case Processor will disable your American Express acceptance services, and you will no longer be permitted to acceptAmerican Express paymentcardsunder the Agreement.
40.3. Treatment of American Express Card Member Information. Any and all Cardholder Information is confidential and the sole property of the Issuer, American Express or its Affiliates. Except as otherwise specified, you must not disclose Cardholder Information, nor use nor store it, other than to facilitate transactions at your Establishments in accordance with the Agreement.
40.7. Conversion to a Direct Relationship with American Express.
Youacknowledge and agree that upon written notice from us, you will be converted to a direct American Express Card acceptance relationship with American Express if and when the annual American Express Card charges that you submit under this Agreement are greater than $1,000,000. You agree that , upon conversion, (i) you will be bound by American Express’ then-current Card Acceptance Agreement with respect to American Express Transactions;(ii) American Express will set pricing and other fees payable by you for American Express Card acceptance; and (iii) you will no longer be able to submit American Express Card transactions under this Agreement, but this Agreement will continue in full force and effect withrespectto otherpaymentsandservicesyouelectedto receiveon your Application. If you need to receive American Express related services from us after you have been converted to a direct relationship with American Express,thenyouwillneedto contactourCustomerServiceat1-800- 451-5817torequestthatyouraccountbeentitledforAmericanExpress acceptance and to acknowledge the new pricing terms for our services associatedwithyourdirectrelationshipwithAmericanExpress.
40.4. American Express Transaction Data. The transaction data you collect to facilitate the Charge must be or have been provided directly to you by the Cardholder. You must not accept or have accepted transaction data from, nor shall you provide or have provided transaction data to, any third parties other than your covered parties (as defined in the Data SecurityRequirements(DSR)).If youfail to complywiththisrequirement, in addition to other rightsand remediesregarding“monitoring”,you may be charged a fee as indicated on the Merchant Processing Application, we may suspend Card acceptance privileges at your establishments, or terminate the Agreement. Where Cardholders pay you using payment or “e-wallet” accounts (which Cardholders may have created by providing Card- member information when the account was established), the transaction data collected to facilitate the Card Not Present Charge has alreadybeenprovideddirectlybytheCardholder.Youarenotrequired to have the Cardholder re-enter the transaction data. All information required by American Express evidencing one or more transactions, including information obtained at the point of sale, information obtained or generated during Authorization and Submission, and any Chargeback.
40.8. Reserved.40.5. Treatment of American Express Cardholder Information. You acknowledge that any and all American ExpressCardholder information is 40.9. Third Party Beneficiary Rights. American Express is adirect WFB2210(Rev00-10/19) 55
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 • Clearly disclose your intent and obtain written consent from the Cardholder that their purchases or refunds (or both) on the Card may be aggregatedandcombinedwithotherpurchasesor refunds(orboth)before yourequestan Authorization.
and intended third-party beneficiary of this Agreement, and may enforce any terms of this Agreement that apply to American Express, including American Express Card acceptance and transaction processing, directly against you.
• Each individual purchase or refund (or both) that comprises the aggregated Charge must be incurred under the same merchant number and on the sameCard.
40.10. Your Right to Opt Out of American Express Card Acceptance.
You may opt out of accepting American Express Cards at any time without directly or indirectly affecting your rights to accept any other payment products. In order to opt out you must complete the Limited Acceptance Form. Toobtain a copy of this form, you call Processor at the Customer Service Number stated in Section 42.4 of the Program Guide. • Obtainapre-Authorizationofnomorethan$15
• Create a Sales Draft for the full amount of the aggregated Charge. • The amountof the aggregated Charge must notexceed $15 or the amountforwhichyouobtainedpre-Authorization.40.11. Collections from American Express Cardholder. You may not bill or collect from any American Express Cardholder for any purchase or payment on the American Express Card unless a Chargeback has been exercised, you have fully paid for such Charge, and you otherwise have the right to do so.
• Submit each Sales Draft within our submissiontimeframe. •Provide the Cardholder with an emailcontaining the date,amount, and descriptionof eachindividualpurchaseor refund(orboth)thatcomprises the aggregated Charge, and the date and the amount of the aggregated Charge.
40.12. American Express Key-Entered Charges.
If a Card cannot be read electronically, in addition to the “Magnetic Stripe Card Charges” requirements, you must: 40.16. American Express-Excessive Disputes. You may be subject to various fees and assessments as set forth on the Application including fees for excessive disputes. Some fees and assessments are for special products or services, while others may be applied based upon non-compliance of American Express policies and procedures. Many non-compliance fees and assessments can be avoided by correcting the actions that are causing such non-compliance.
• Key-enter thedata.
40.13. Keyed No Imprint for American Express Transactions. • Your establishments may be eligible to participate in the American Express “Keyed No Imprint Program.” The “Keyed No Imprint Program” allows you to submitin-person chargeswithouttaking an imprintof the Card if you meet the following Chargecriteria: 40.17. American Express Right to Modify or Terminate Agreement.
American Express has the right to modify the Agreement with respect to American ExpressCard transactionsor to terminate your acceptance of American Express Card transactions and to require Processor to investigate your activities with respect to American Express Card transactions.
• All Cards qualify for the “Keyed No Imprint Program.” • The Charge must bekey-entered.
• The Charge Submission must include the appropriate indicator to reflectthatthe Card and the Cardholderwere presentat the pointof sale. • The Charge Submission must include a valid approval, and; 40.18. Acceptance Procedures for American Express Travelers and GiftCheques.• The CID Number must be confirmed as a positive match. Under the “Keyed No Imprint Program,” Chargebacks will not be exercised for such charges based solely on the establishment’s failure to obtain an imprint of the Card. If a disproportionateamountor number of disputed charges under the “Keyed No ImprintProgram”occurs,youmust cooperate to reduce the number of disputed charges. If such efforts fail, you may be placed in any of American Express’ Chargeback programs or your participation in the “Keyed No Imprint Program” may be modified or terminated.
Procedures for accepting American Express Travelers and Gift Cheques:
• Watch Merchant’s customer countersign in the lower left corner of the cheque, and compare the countersignature to the signature in the upper left corner for American Express Travelers Cheques and Gift Cheques. For Cheques for Two, the customer's countersignature must match either one of thetwosignatureson top.
• Obtain authorization - American Express recommends obtaining an authorization to reduce the chances of accepting fraudulent cheques.
American Express offers a variety of authorization tools. Obtain online authorization at www.americanexpress.com/verifyamextc.
40.14. MerchantWebsiteInformationDisplayGuidelines.
• An accurate description of the goods/services offered, including the currency type for the transaction (e.g.,U.S.Dollars).Transaction currency must be in U.S.Dollars.
41. Glossary
As used in this Program Guide, the following terms mean as follows:
• Your physical address in the U.S.
Acquirer: Bank in the case of Mastercard, Visa and certain debit transactions or Processor in the case of Discover and PayPal (in-store only) transactions that acquire Card sale transactions from merchants such as yourself.
• An email address and a telephone number for customer service disputes.
• Return/refund policy.
• A description of your delivery policy (e.g., No COD, No overnight). Address Verification: A service provided through which the merchant verifies the Cardholder’s address, in whole or in part. Primarily used by Mail / Telephone/Internet order merchants. Address verification is intended to deter fraudulent transactions, however, an AVS match does not guarantee that a transaction is valid. An AVS request should generally be submitted with an authorization request. The AVS response, if available, however will not impact whether any associated authorization request is approved or denied. You may be charged an AVS fee for any AVS request you submit even if we are not able to provide a response to the request. • A description of your security practices (e.g., information highlighting security practices you use to secure transactions conducted on the internet).
• A statementof knownexportrestrictions,tariffs,andanyother regulations.
• A privacy statement regarding the type of personal information collected and how the information is used. Additionally, you must provide to customers the option to decline being included in marketing campaigns or havingtheir personalinformationincludedon listssold to third parties.
Affiliate: ”Affiliate” of a Person means another Person that, directly or indirectly,(i)ownsor controlssuchPersonor (ii) isundercommon ownershiporcontrolwithsuchPerson.40.15. Aggregated Charges.
Agreement: The Agreements among Client, Processor and BankIf you are classified as an internet industry, you may process aggregated charges, provided the following criteria are met:
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contained in the Application, the Program Guide and the Schedules theretoanddocumentsincorporatedtherein,eachasamendedfromtime to time, which collectively constitute the Agreementamong the parties.
Annualized Sales Volume: Annualized Sales Volume is the greater of (1) the sum of the monthly Sales Volume since the account was activated, divided by the number of months the account has been active, and then multipliedbytwelve(12),or (2)theestimatedannualSalesVolumelistedin the Agreement. An active account is defined as an account having a Sales Volume of fifty dollars ($50.00) or greater for that month. If the Client has three months or less of Sales Volume, the “Annualized Sales Volume” is the estimated annual Sales Volume provided by the Client in the Agreement.
Card Verification: A three-digit value printed in the signature panel of most Cards and a four-digit value printed in the front of an American Express Card. Visa’s Card Verification Code is known as CVV2; Mastercard’s Card Verification Code is known as CVC2; the Card Verification Codes for Discover, PayPal and American Express are known as a Card Identification Numbers (CID). Card Verification Codes are used to deter fraudulent use of an account number in a non-face-to-face environment,(e.g.,mailorders,telephoneordersandInternetorders).Application: See Merchant Processing Application.
Authorization: Approval by, or on behalf of, the Card Issuer to validate a transaction. An authorization indicates only the availability of the Cardholder’s Credit Limit or funds at the time the Authorization is requested An Authorization Fee (see Fee Schedule) can be charged for each Authorization, whether approved or declined.
Card Verification Value (CVV) / Card Validation Code (CVC)/ Card Identification Data (CID): A unique value encoded on the MagneticStripeofaCardusedtovalidateCardinformationduringthe Authorizationprocess.
Cardholder Verification Method (CVM): A method used to confirm the identity of a Cardholder and to signify Cardholder acceptance of a transaction, such as signature, Offline PIN, and Online PIN.
Authorization Approval Code: A number issued to a participating merchant by the Authorization Center which confirms the authorization for a sale or service. Cash Benefits: An EBT account maintained by an Issuer that represents pre-funded or day-of-draw benefits, or both, administered by one or more government entities, and for which the Issuer has agreed to provide access under the EBT program. Multiple benefits may be combined in a single cash benefit account.
Authorization and Capture: Refers to the communication of instructions from your POS device or other systems to our computer systems, whether the communications are for authorization requests or any other capture of information. If your Service fee Schedule reflects an authorization and capture fee it may be applied to each communication you transmit to us.
Cash Over Transaction: Dispensing of cash by a merchant in connection with a Card sale, other than a PIN Debit Card transaction, for the purchase of goods or services.
Authorization Center: A department that electronically communicates a merchant’s request for authorization on Credit Card transactions to the Cardholder’s bank and transmits such authorization to the merchant via electronic equipment or by voice authorization. Charge or Charges: The total price, including all applicable taxes and gratuities,for the purchaseof goods or services at a merchantfor which a Cardholder has signed a Sales Draft or otherwise indicated intent to pay with a Card.
Authorization /EDC Fees: A fee that applies to all Visa, Mastercard and Discover Card approvals (pre-authorizations, authorizations & authorization reversals), denials, batch inquiries, and batch entry transactions and includes any transaction fees and capture fees. Chargeback: A Card transaction (or disputed portion) that is returned to us by the Issuer. Client is responsible for payment to us for all Chargebacks.Bank: The bank identified on the Application signed by you.
Bankruptcy Code: Title 11 of the United States Code, as amended from time to time.
Check Warranty: A service provided through a merchant’s POS equipment which guarantees payment up to a defined limit, provided the merchant follows proper steps in accepting the check.Batch: A single Submission to us of a group of transactions (sales and credits) for settlement.A Batchusually represents a day’sworth of transactions.
Check Verification: A service provided in which a merchant accesses a national negative file database through its terminal/register to verify or authorize that a person has no outstanding bad check complaints at any of the member merchants. This is not a guarantee of payment to the merchant.
Business Day: Monday through Friday, excluding Bank holidays.
Buyer Initiated Payment (BIP): A payment that occurs when a cardholding business approves an invoice (or invoices) and submits an electronic payment instruction causing funds to be deposited directly into a their supplier’s merchant account.
Chip: An integrated microchip embedded on a Card containing cardholder and account information.
Chip Card: A Card with an embedded EMV-compliant chip containing memory and interactive capabilities used to identify and store additional data about a Cardholder,an Account,or both.
Card: Means a Credit Card and/or a Debit Card.
Cardholder: Means the Person whose name is on a Card and any authorized user of such Card, including the Person that has entered into an agreement establishinga Card account with an Issuer. The words “Card Member”refertoCardholder.
Claim: Means any claim (including initial claims, counterclaims, cross- claims, and third party claims), dispute, or controversy between you and us arising from or relating to the Agreement or prior Card acceptance agreements, or the relationship resulting therefrom, whether based in contract, tort (including negligence, strict liability, fraud, or otherwise), statutes, regulations, or any other theory, including any question relating to the existence, validity, performance, construction, interpretation, enforcement, or termination of the Agreement or prior Card acceptance agreements or the relationship resulting therefrom.
Card General Terms: Section of the Program Guide, including any amendments or modifications.
Card Not Present Sale/Transaction: A Transaction that occurs when the Card is not present at the point-of-sale,includingInternet,mail-order andtelephone-orderCardsales.
Card Organization: Any entity formed to administer and promote Cards, including without limitation Mastercard Worldwide (“Mastercard”), Visa U.S.A., Inc.(“Visa”), DFS Services LLC (“Discover”), PayPal, Inc. (“PayPal”), American Express Company, Inc. (“American Express”) and any applicable debit networks.
Client: The party identified as “Client” on the Application. The words “Subscriber,” “you,” “your” and “Customer” refer to Client. Also, sometimes referred to as “Merchant.”
Contactless Payment: payment performed in a Card-Present Environment with a Contactless card or Payment Device (e.g., MobileCard Organization Rules: The rules, regulations, standards, releases, WFB2210(Rev00-10/19) 57
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phone) at the Point-of-Transaction.
Credit: A refund or price adjustment given for a previous purchase transaction. Imprinter: A manual or electric machine used to physically imprint the merchant’s name and ID number as well as the Cardholder’s name and Card number on Sales Drafts.
Credit Card: A device bearing a valid Organization Mark of Visa, Mastercard, Discover, PayPal or American Express and authorizing the Cardholder to buy goods or services on Credit and, to the extent the Schedules so provide, a valid device authorizing the Cardholder to buy goods or services on Credit and issued by any other Card Organizations specified on such Schedules.
Issuer: The financial institution or Card Organization (or other Entity authorized by a Card Organization) which has issued a Card to a Person.
Limited Amount Terminal: A customer Activated Terminal that has data capture only capability, and accepts payment for items such as parking garage fees, road tolls, motion picture theater entrance, or magnetic stripe telephones.
Credit Draft: A document evidencing the return of merchandise by a Cardholder to a Client, or other refund or price adjustment made by the Clientto theCardholder,whetherelectronic,paperor some other form, all of which must conform to Card Organization Rules and applicable law. Magnetic Stripe: A stripe of magnetic information affixed to the back of a plastic Credit or Debit Card. The Magnetic Stripe contains essential Cardholder and account information.Credit Limit: The credit line set by the Issuer for the Cardholder’s Credit Card account.
Marks: Names, logos, emblems, brands, service marks, trademarks, trade names, tag lines or other proprietary designations.Customer Activated Terminal (CAT): A Magnetic Stripe terminal or chip- reading device (such as an automatic dispensing machine, Limited Amount Terminal, or Self-Service) that is not an ATM. Mastercard Account Status Inquiry Service Fee: Zero dollar Account Status Inquiry Service requests (including AVS, CVC2 or both).Data Incident: Any actual or potential unauthorized or fraudulent access to (oruse,disclosure,or alterationof) transactiondata,whetherconsisting of a single event, a continuous course of events, or a series of related events.
Mastercard CVC2 Fee: A fee assessed for transactions acquired in the U.S. Region with the CVC2 (Three digit code on the back of the Mastercard issued card) included in the transaction for authorization and where the CVC2 response value equals ‘M’ (Match) or ‘N’ (Invalid/did not match). The fee will not be applied to Account Status Inquiry (ASI) requests.Data Incident Expenses: Means: (a) any obligations that you have to us arising from a Data Incident including EMV Upgrade Costs; (b) the costs of a security assessmentconducted by a qualified security assessor approved by a Payments Organization or PCI to determine the cause and extent of a Data Incident; and (c) any reasonable fees and expenses incurred by us, or by you with our prior written consent, for any Mitigation Services specifically approved by us in writing but only if the Mitigation Services are provided within one (1) year following discovery of the relevant Data Incident.
Mastercard Digital Enablement Fee: A fee assessed by Mastercard on select Card Not Present transactions.
Media: The documentation of monetary transactions (i.e., Sales Drafts, Credit Drafts, computer printouts, etc.)
Merchant Identification Card: A plastic embossed card supplied to each merchant to be used for imprinting information to be submitted with each batch of paper Sales Drafts. Embossed data includes Merchant Identification Number, name and sometimes merchant ID code and terminal number.
Debit Card: Means a PIN Debit Card and/or a Non-PIN Debit Card.
Dial-Up Terminal: An Authorization device which, like a telephone, dials an Authorization Center for validation of transactions. Merchant Identification Number: A number that numerically identifies each merchant location, outlet, or line of business to the Processor for accounting and billing purposes.
Discount Rate: A percentage rate charged to merchants, as applicable, for processing Card transactions.
Discover International Service Fee: A fee assessed by Discover on the amount of Card Sales (excluding Cash Over) conducted at a Client location in the United States where the domicile of the Issuer of the Card used in the Card Sale is a country other than the United States. This fee is not applicable to Card Sales with JCB and China Union Pay cards.
Merchant Processing Application (“MPA”): The Merchant Processing Application and Agreement executed by Client, which is one of the documents comprising the Agreement.
Merchant Provider: Any Person engaged by you to provide services to you involving or relating to (i) access to Cardholder data, transaction dataor informationrelatedto eitherCardholderdataor transactiondata or (ii) PIN encryption, including without limitation, Encryption Service Organizations (ESOs).
Electronic Benefit Transfer (EBT): An Electronic Benefits Transfer system used to deliver certain government delivered benefits, including without limitation Cash Benefits and FNS, SNAP and WIC Benefits, to EBT customers. Mitigation Service: A service provided to a cardholder whose informationis the subjectof a Data Incident, where the primary purpose of the service is to mitigate the effects of the Data Incident, including identity thefteducation and assistance and credit monitoring.
Electronic Draft Capture (EDC): A process which allows a merchant’s Dial-Up Terminal to receive Authorization and capture transactions, and electronically transmit them to the Processor. This eliminates the need to submitpaperforprocessing. Non-Bank Services: Products and/or Services for which Bank is not responsible, or a party to, including American Express EDC Transactions, PIN Debit Card, and Electronic Benefits Transfer Transactions, TeleCheck Check Services, Gift Card Services and Transactions involving Cards from other Non-Bank Card Organizations, such as Voyager Fleet Systems, Inc., WEX, Inc. and WEX Bank, Discover, PayPal, Leasing, TransArmor, Fraud Services, Wireless, Payeezy Gateway Services, and other items as may be indicated in this Program Guide.
EMV: Developed by Europay, Mastercard, and Visa. It is the global standard for chip based payments.
EMV Upgrade Costs: The costs you agree to incur to upgrade payment acceptanceandprocessinghardwareandsoftwareto enable you to accept and process EMV-enabled Cards in a manner compliant with the PCI DSS.
Entity: Means a corporation, partnership, sole proprietorship, trust, association, or any other legally recognized entity or organization. Non-PIN Debit Card: A device with either a Visa, Mastercard or Discover Mark that is tied to a Cardholder’s bank account or a prepaid account and which is processed without the use of a PIN.
Factoring: The submission of authorization requests and/or Sales Drafts by a merchant for Card sales or cash advances transacted by another business. Factoring is prohibited. Non-Qualified Interchange Fee: The difference between the interchange fee associated with the anticipated interchange program and theFraud Full Recourse: One of American Express’s Chargeback programs WFB2210(Rev00-10/19) 58
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interchange fee associated with the more costly interchange level at which the transaction actually was processed.
Non-Qualified Surcharge: A surcharge applied to any transaction that fails to qualify for the anticipated interchange program and is therefore downgraded to a more costly interchange level. The Non-Qualified Surcharge (the amount of which is set forth on the Service Fee Schedule) is in addition to the Non-Qualified Interchange Fee, which is also your responsibility (see above and Section 5.1).
Rules: The rules, regulations, standards, releases, interpretations and otherrequirements(whethercontractualorotherwise)imposedoradopted by any Card Organization and related authorities, including without limitation, those of the PCI Security Standards Council, LLC and the National Automated Clearing House Association (including, with respect to EBTs, the Quest Operating Rules).Operating Procedures: The information prepared by Processor, containing operational procedures, instructions and other directives relating to Card transactions. The current Operating Procedures are set forth in Part B of the Program Guide.
Sales/Credit Summary: The identifying form used by a paper Submission merchant to indicate a Batch of Sales Drafts and Credit Drafts (usually one day’s work). Not a Batch header, which is used by electronic merchants.PAN Truncation: A procedure by which a Cardholder’s copy of a Sales Draft or Credit Draft, or as required by applicable law, the Sales Draft or Credit Draft that you retain, will only reflect the last four digits of the Card account number.
Sales Draft: Evidence of a purchase, rental or lease of goods or Services by a Cardholder from, and other payments to, Client using a Card, including preauthorized orders and recurring transactions (unless the context requires otherwise); regardless of whether the form of such evidence is in paper or electronic form or otherwise, all of which must conform to Card Organization Rules and applicable law.
Person: A third party individual or Entity, other than the Client, Processor or Bank.
PIN: A Personal Identification Number entered by the Cardholder to submit a PIN Debit Card transaction. Sales Volume: The total combined amount of Credit Card, PIN Debit and Non-PIN Debit (Mastercard, Visa, Discover and American Express) paymenttransactionsprocessedby us minus any amountsattributable to returned items.
PIN Debit Card: A device bearing the Marks of ATMnetworks (such as NYCE, Star) used at a merchant location by means of a Cardholder-entered PIN in the merchant PIN Pad.
PIN Debit Banks: The PIN Debit Bank(s) identified on the Application signed by you that is/ are the sponsoring or acquiring bank(s) for certain PIN Debit networks.
Schedules: The attachments, addenda and other documents, including revisions thereto, which may be incorporated into and made part of this Agreement concurrently with or after the date of this Agreement.
PINless Transaction: A PIN Debit transaction using a Debit Card that does not require the Cardholder to enter a PIN. .
Self Service Terminals: A Customer Activated Terminal that accepts payment of goods or services such as prepaid cards or video rental, has electronic capability, and does not acceptPIN’s.Point of Sale (POS) Terminal: A device placed in a merchant location which is connected to the Processor’s system via telephone lines and is designed to authorize, record and transmit settlement data by electronic means for all sales transactions with Processor.
Servicers: Bank and Processor collectively. The words “we,” “us” and “our”referto Servicers,unlessotherwiseindicatedin thisProgramGuide.
Services: The activities undertaken by Processor and/or Bank, as applicable to authorize, process and settle all United States Dollar denominated Visa, Mastercard, Discover, PayPal and American Express transactions undertaken by Cardholders at Client’s location(s) in the United States, and all other activities necessary for Processor and Bank to perform the functions required by this Agreement for all other Cards covered by this Agreement. For the avoidance of doubt, and without limiting the foregoing, “Services” shall include any ancillary products or services provided to You by Processor and/orBank in connection with this Agreement to the extent such products or services are not provided to you pursuanttoaseparateagreementwithProcessorand/orBank.
Processor: The entity identified on the Application (other than the Bank) which provides certain services under the Agreement.
Program Guide (also known as the Merchant Services Program Terms and Conditions): The booklet which contains Operating Procedures, General Terms, Third Party Agreements, and Confirmation Page, which, together with the Application and the Schedules thereto and documents incorporated therein, constitute your Agreement with Processor and Bank.
Recurring Payment Indicator: A value used to identify transactions for which a Cardholder provides permission to a merchant to bill the Cardholder’s Card account at either a predetermined interval or as agreed by the Cardholder for recurring goods or services.
Settlement Account: An account or accounts(s), unless otherwise agreed upon by the parties, at Wells Fargo Bank or one of its affiliates, designated as the account to be debited and credited by Processor or Bank for Card transactions, fees, chargebacks and other amounts due under the Agreement or in connection with the Agreement.
Referral: A message received from an Issuer when an attempt for Authorization requires a call to the Voice Authorization Center or Voice Response Unit (VRU). Signature Debit: A transaction using a Debit Card that requires the Cardholder to provide a signature rather than a PIN.Reserve: Monies held by us in order to secure or fund your obligations with us. Split Dial: A process which allows the authorization terminal to dialdirectlyto differentCardProcessors(e.g.,American Express) for Authorization. In this instance, the merchant cannot be both EDC and Split Dial. Split Dial is also utilized for Check Guarantee companies.
Reserve Account: An account established and funded at our request or on behalf, pursuant to Section 11 of the Agreement.
Resubmission: A transaction that the merchant originally processed as a Store and Forward transaction but received a soft denial from the respective debit network or Card Organization. The Resubmission transactionallowsthemerchantto attemptto obtainan approvalforthe soft denial, in which case Client assumes the risk that the transaction fails.
Split Dial/Capture: Process which allows the Authorization terminal to dial directly to different Card processors (e.g., American Express) for Authorization and Electronic Draft Capture.
Store and Forward: A transaction that has been authorized by a merchant when the merchant cannot obtain an authorization while the customer is present, typically due to a communications failure. The merchantwill store the transactionelectronicallyin their host system and retransmitthetransactionwhencommunicationshavebeenrestored.
Retrieval Request/Transaction Documentation Request: A request for documentation related to a Card transaction such as a copy of a Sales Draft orothertransactionsourcedocuments.
Revenue: Total fees for Services minus the amount of interchange, Submission: The process of sending Batch deposits to Processor for WFB2210(Rev00-10/19) 59
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 If a transaction fails to qualify for your anticipated interchange programs, you will be billed a Non-Qualified Interchange Fee, plus a Non-Qualified Surcharge for each such non-qualifying transaction (see Section 5.1 and Glossary).
processing. This may be done electronically or by mail.
Summary Adjustment: An adjustment to your Submission and / or SettlementAccountsinordertocorrecterrors.(SeeSections36.2.and36.3.) Telecommunication Card Sales: Individual local or long distance telephone calls,for whichthe telephone service providerispaiddirectly by use of a Card. These do not include, however, calls paid for with pre-paid telephone service cards. Telecommunication Card Sales are considered Card Not Present Sales.
Your initial fees for Services are stated on your Application and may be adjusted from time to time to reflect:
a. Any increasesor decreasesin the interchange and/orassessment portionof thefees,
b. The appropriate interchange level as is consistent with the qualifying criteria of each transaction submitted by Client, andTransaction Fees: Service costs charged to a merchant on a per transaction basis.
c. Increases in any applicable sales or telecommunications charges or taxes levied by any state,federalor localauthorityrelatedto the delivery of the services provided by Wells Fargo Merchant Services, L.L.C. when such costs are included in the Service or otherfixed fees.
Us, We and Our: See Servicers.
You, Your: See Client.
42. ADDITIONAL IMPORTANT INFORMATION PERTAINING TO
THIS ENTIRE AGREEMENT In addition to the Debit Card transaction fees set forth on the Application, Client shall be responsible for the amount of any fees imposed upon a transaction by the applicable debit network.
42.1. Electronic Funding Authorization
All payments to Client shall be through the Automated Clearing House (“ACH”) and shall normally be electronically transmitted directly to the Settlement Account you have designated or any successor account designated to receive provisional funding of Client’s Card sales pursuant to the Agreement. Client agrees that any Settlement Account designated pursuant to the preceding sentence will be an account primarily used for business purposes. Neither Wells Fargo Bank, N.A. (“Wells Fargo Bank”) nor Wells Fargo Merchant Services, L.L.C. can guarantee the timeframe in which payment may be credited by Client’s financial institution where the Settlement Account is maintained.
A Monthly Minimum Processing Fee will be calculated beginning thirty (30) days after the date Client’s Application is approved.(Refer to your pricingdisclosures.)
Authorization Fees are charges that apply each time you communicate directly with Processor.
Authorization /EDC Fee applies to all Visa, Mastercard and Discover Card approvals (pre-authorizations, authorizations and authorization reversals), denials, batch inquiries, and batch entry transactions and includes any transaction fees and capture fees.
Client hereby authorizes Wells Fargo Bank and its authorized An equipment rental fee will be charged each month for each piece of equipment rented, plus tax as applicable. Client will be charged for actual shipping fees for equipment and cost of supplies.
representative, including Wells Fargo Merchant Services, L.L.C., to access information from the Settlement Account and to initiate credit and/or debit entries by bankwire or ACH transfer and to authorize your financial institution to block or to initiate, if necessary, reversing entries and adjustments for any original entries made to the Settlement Account and to authorize your financial institution to provide such access and to credit and/or debit or to block the same to such account. This authorization is without respect to the source of any funds in the Settlement Account, is irrevocable and coupled with an interest. This authority extends to any equipment rental or purchase agreements which may exist with Client as well as to any fees and assessments and Chargeback amounts of whatever kind or nature due to Wells Fargo Merchant Services, L.L.C. or Wells Fargo Bank under terms of this Agreement whether arising during or after termination of the Agreement. This authority is to remain in full force and effect at all times unless and until Wells Fargo MerchantServices, L.L.C. and Wells Fargo Bank have consented to its termination at such time and in such a manner as to afford them a reasonable opportunity to act on it. In addition, for each ACH which cannot be processed, and all subsequent funding may be suspended until Client either (i) notifies Wells Fargo Merchant Services, L.L.C. that ACH’s can be processed or (ii) a new electronic funding agreement is signed by Client. Client’s Settlement Account must be able to process or accept electronic transfers via ACH.
The parties further agree and acknowledge that, in addition to any remedies contained herein or otherwise available under applicable law, if (a) Client breaches this Agreementby improperly terminating it prior to the expiration of the applicabletermof the Agreement,(b) this Agreementisterminatedpriorto theexpirationof theapplicableterm of the Agreement due to an Event of Default, or (c) the actual volume is materially less than the anticipated annual volume, then Servicers will suffer a substantial injury that is difficult or impossible to accurately estimate. Accordingly, in an effort to liquidate in advance the sum that should represent such damages, the parties have agreed that the amount calculated in the manner specified below (the “Early Termination Fee”) is a reasonable pre-estimate of Servicers’ probable loss. The Early Termination Fee shall be paid to SERVICERS within 7 days after Client’s receipt of Servicers’ calculation of the amount due.
The amount of the Early Termination Fee will be calculated as follows:
(i) If the Client’s total Sales Volume for the preceding 12 months* is less than One Million Dollars($1,000,000) there is no Early TerminationFee;or (ii) If the Client’s total Sales Volume for the preceding 12 months* is greater than or equalto OneMillionDollars($1,000,000)andthe termination occurs during the initial term or any renewal term, then the Early Termination fee is Five Hundred Dollars ($500.00) per location plus six (6) times the highest amount of Revenue in any single calendar month during the initial term or any renewal term.
42.2. Funding Acknowledgement Automated Clearing House (ACH).
Automated Clearing House (ACH). I acknowledge that the funds for Mastercard, Visa and Discover, PayPal and American Express transactions will be processed and transferred to my Settlement Account within two (2) Business Days from the time a Batch is closed (by 11:00 p.m. PT) and withinone(1)BusinessDayfromthetimetheBatchisclosed(by11:00 p.m. PT) if such account is a Wells Fargo Settlement Account. The ACH transactions will appear on your statement as “Merchant Bnkcd”. * If you have been processing with us for less than 12 months, the early termination fee shall be calculated based on “Annualized Sales Volume” in lieu of “Sales Volume.”
Client’s obligation with respect to any Monthly Minimum Processing Fee will end when Servicers receive the aforementioned Early Termination Fee.42.3. Additional Feesand EarlyTermination The fees for Services as shown on your pricing disclosure are based on the assumption that your Credit Card and Non-PIN Debit transactions will qualify at the anticipatedinterchangeprograms associatedwithyour account.
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42.4. Addresses forNotices
PROCESSOR:
Wells Fargo Merchant Services, L.L.C.:
P.O. Box 6079
Concord, CA 94524
Attn: Sales Manager
BANK:
Wells Fargo Bank:
P.O. Box 6079
Concord, CA 94524
Attn: Merchant Services
Important Phone Numbers: (see also Sections 28.3 and 30.4) Customer Service: 1-800-451-5817 press 2
Mastercard/Visa/Discover Authorization Center
1-800-626-4480
POS Help Desk: 1-800-622-0842
If thisapplication for businesscreditis denied you may obtain a written statement of the specific reasons for the denial. Toobtain the statement, please contact Credit Initiation, PO Box 6079, Concord, CA 94524, within sixty (60) days from the date you are notified of our decision. We will send you a writtenstatementof reasonsforthedenialwithinthirty(30)daysof receiving yourrequest.
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 Part III: Third Party Agreements
The following Agreements are Third Party Agreements entered into between Client and the Third Parties identified in the Third Party Agreements.
If Client desires to receive the products and/or services offered under a Third Party Agreement, Client must check the appropriate box or otherwise indicate such desire in the Merchant Processing Application, in which case the terms and conditions of the Third Party Agreement shall be binding upon Client. The Signature page in the Merchant Processing Application or any Schedule thereto shall also serve as a signature page to the Third Party Agreements.
Client acknowledges that the Third Parties are relying upon the information contained on the Merchant Processing Application and the Schedules thereto, all of which are incorporated by reference into the Third Party Agreements.
1.0. TeleCheck Solutions Agreement for breach of its Information Warranty will not exceed the lesser of: (a) the amount of the Eligible Item, or (b) the Warranty Maximum set forth in the TeleCheck Service Application and Agreement. Company may accept Items that do notreceivean approvalcodeor thatdo not meet the warranty requirements (these Items are Ineligible Items); however, Ineligible Items are not covered under TeleCheck’s Information Warranty and TeleCheck willnotpurchasethem.
1. Services. TeleCheck will provide Client (also referred to as Company) with the Telecheck services indicated in the Merchant Processing Application and Agreement which may include: (i) coded information that it may use when deciding whether to accept a check or electronic funds transfer item (each an Item, and together, Items) when provided by its consumers as payment, (ii) settlement processing services and (iii) warranty or verification services; all as described in this Agreement (together, Services). TeleCheck will be Company’s exclusive provider of the Services during the Term(defined below) of this Agreement. Company agrees to the terms of this Agreement by signing the Merchant Processing Application; clicking “Accept” or “Install” when presented via an App (as applicable and described below); or using any of the Services. Company acknowledges that the Specialty Items (Settlement Only) service does includereceivingcodedinformation,warrantyor verificationservices.
1.4. Warranty Requirements. Company represents and warrants that each Item it submits to TeleCheck for processing and coverage under the InformationWarrantymeetsthefollowingrequirements:
A. General Requirements. The following apply to all Itemsunless otherwise specified:
(1) the Item was submitted to TeleCheck for processing according to TeleCheck’s operating guidelines and specifications, and Company obtained a single approvalcode for it;1.1. Delivery by Application. If the TeleCheck Services are provided through TeleCheck’s check acceptance application (App) that resides on a Clover® point of sale device (a Device), Company agrees that this Agreement will govern Company’s access to and use of TeleCheck’s Services on such App. Company’s use of its Device is subject to its agreement with the supplier of the Device (and not TeleCheck), and this Agreement does not alter Company’s agreement with its Device supplier.
Company will comply with the terms of its agreement with the Device supplier; and warrants that it is authorized to install and use TeleCheck’s App on the Device.
(2) the Item is drawn on the consumer’s deposit account at a United States or Canadian financial institution (for example, and without limitation, money orders, cashier’s checks, travelers checks, insurance checks,creditcardchecks,or non-firstpartyItemsareIneligibleItems); (3) the Item, or a clear image of the Item (if submitted using a mobile or other optical imaging device), shows the consumer’s name, address, check number, and routing and account numbers in the MICR line (not applicableif the paymentisonline or over the phone);
(4) the Item isa properly completed firstpartyItem that is dated, payable to Company, made out for the amount due to Company for its goods or services, and signed by the consumer (not applicable if the payment is onlineoroverthephone);
1.2. Submitting Items. Company will designate the types of Items it accepts and that it will submit to TeleCheck for processing under this Agreement as indicated on the Merchant Processing Application.
Company must submit the Item to TeleCheck through the appropriate service. For example, checks presented in person by consumers at Company’s point of sale can only be submitted through the In-Person Warranty (or Verification) service, checks sent through the mail to Company can only be submitted through the By Mail/Drop Box service.
Company will submit all of its designated Items to TeleCheck for processing under this Agreement. Except for Items processes through the By Mail/Drop Box service, TeleCheck will analyze each Item that Company submits for processing and, in its discretion, provide Company with an approval or decline code with respect to each Item. TeleCheck will give Company operating guidelines and specifications, as applicable, to assist Company with properly accepting and submitting its Items for processing (operating guidelines and specifications may be provided to Company electronically ormade available via the Internet). (5) the consumer authorized debiting its account by electronic funds transfer or remotely created check for the amount of the Item (an Authorization) in accordance with TeleCheck’s operating guidelines and specifications and the rules of the National Automated Clearinghouse Association (NACHA Rules), as applicable, for the services utilized ; (6) the Item represents the consumer’s payment obligation to Company for its goods or services,and has not been used in anothertransaction; (7) the amount of the Item (a) is for the price of Company’s goods or services,(b) matches the amount submitted to TeleCheckfor processing, and (c) does not exceed the WarrantyMaximum;
(8) the Item wasnotsubmitted asa splitsale or in other ways to avoid thesewarrantyrequirementsortheWarrantyMaximum;
(9) the Item is not for credit,cash,or payment on an account,debt,or Item already due toCompany;
1.3. Information Warranty. If Company has selected a warranty service in the Merchant Processing Application, TeleCheck warrants the accuracy of the information given in its approval code (the Information Warranty) when an Item meets the warranty requirements described below. Items that satisfy TeleCheck’s Information Warranty and meet the corresponding warranty requirements are Eligible Items. TeleCheck will purchase Eligible Items that are subsequently dishonored, returned, reversed, or otherwise not paid by a consumer’sfinancialinstitution(these Items are Return Items). Company’s sole remedy for a breach of TeleCheck’s Information Warranty is the right to require TeleCheck to purchase an Eligible Item that became a Return Item. TeleCheck’s liability to Company (10)theItemdoesnotpre-dateor post-datethedateof thetransaction and corresponding inquiry to TeleCheckby more than 1 calendarday; (11) the transaction and correspondingItem are not subject to any stop payment,disputeorsetoffright;
(12)Company is not aware of anything that invalidates the Item, prevents itscollection,or relievestheconsumerfromliabilityforit; and (13) Companyprovided the notices required by applicable Law(defined in Section 21.1 below), authorizing TeleCheck to process the Item as an WFB2210(Rev00-10/19) 62
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 days of TeleCheck’s instruction to do so and TeleCheck must receive it for purchase within 45 days of the date on the check. Paper Settlement Items and Redeposit Check Items may only be presented once for payment (TeleCheck will not accept Paper Settlement Items or Redeposit Check Items that Company or its financialinstitution presented for paymentmore than once). In addition, Company must securely store the physical check for at least60 daysfollowingthe correspondingpaymenttransaction. electronic funds transfer or remotely created check and imposing (and authorizing such processing of) a fee for Return Items.
B. RequirementsForIn PersonPayments:If a consumerpresentsa paper check in-person at Company’spoint of purchase location, in addition to those in Section 1.4 A. above the following requirements apply and must be followed in accordance with TeleCheck’s operating guidelines and specifications: (a) the consumer signed an authorization to debit consumer’s account and consumer’s signature on the authorization reasonablymatchesthenameimprintedon the Item; (b) theauthorization must be clearly and conspicuously posted and a copy of the authorization must be provided to the consumer and (c) the Item must be voided and returned to the consumer aftersubmission to TeleCheckfor processing.
If such in-person payment is approved as a paper check that cannot be settled as an electronic funds transfer, the additional requirements in Section 1.4 F below apply.
1.5. Electronic Images. If the Item is submitted to TeleCheck by Company as an image using a mobile device or other image reader, the ability to settle imaged Eligible Items to the banking system depends on (a) the quality of the image and (b) the banking system’s ability to accept the image for settlement processing. Company will use a third party provider to capture imagesof Items using a mobile device (this third party, an Image Vendor) and submit those images to TeleCheck. Company acknowledges that its Image Vendor will require some of Company’s account information (including, without limitation, merchant account number,contactname,emailaddressand deviceidentifier) to submitItem images to TeleCheck; and authorizes TeleCheck to provide the Image Vendor with the information necessary to allow it to submit Item images to TeleCheck on behalf of Company. TeleCheck is not responsible for the image quality of Items submitted through Company’s Image Vendor, or submission of the images by Company’s Image Vendor to TeleCheck.
Company will destroy the physical checks that were submitted as electronic images after storing them securely for at least60 days.
C. Requirements For Online Payments: If a consumer makes an online payment, the following requirements apply in addition to those in Section
1.4 A above: (a) the consumer electronically authorized the transaction in accordance with TeleCheck operating guidelines and specifications and (b) the payment website site authenticates the consumer’s identity and usesappropriatesitesecurityandinternetsessionsecurity standardsin accordance with the NACHA Rules.
D. Requirements For Phone Payments: If the consumer makes payment over the phone, the following requirements apply in addition to those in Section 1.4 A. above: (a) the consumer provided a telephonic authorization in accordance with TeleCheck operating guidelines and specifications; (b) the payment is not the result of Company initiating an unsolicited telephone call to consumer with which Company had no prior relationship; and (c) Company directly tape recorded the verbal telephonic authorization from consumer or, alternatively, Company sent the required written confirmation notice of the oral authorization to the consumer.
1.6. Authorization. Company will maintain a copy of each consumer’s Authorization for the longer of: (a) 2 years, or (b) the period of time required by the NACHA Rules. Company will provide TeleCheck with legible copies of Authorizations within 7 days of TeleCheck’srequest for them.
1.7. Assignment of Items. Company assigns all if its right, title, and interest in each Eligible Item that it submits to TeleCheck for warranty coverage when the Item becomes a Return Item. Companywill reasonably aid TeleCheck in its enforcement of the rights associated with an assigned Eligible Item.
E. Requirements for Mail/Drop Box Checks: If the consumer provides a paper check which was mailed in or submitted in a drop box to Company, the requirements in Section 1.4 A above apply except (a) the check must be for paymentthat is not more than 60 days past due; (b) the check must notbe post-datedor datedearlierthan20 days from the date of inquiry to TeleCheck; and (d) Company must securely store the check for at least 60 days following the corresponding payment transaction at which time it must be destroyed. Additionally, the consumer must not have notified Company that the check was not to be converted into an electronic funds transfer.If such mail/drop box check is approved asa paper check that cannot be settled as an electronic funds transfer, the additional requirements in Section 1.4 F below apply.
1.8. Processing Notices; Return Item Fees. Company will post, and provideconsumerswith,noticesat the point of sale that are required to process Items using the Services and to collect fees on Return Items.
Company will assess the highest fee amount allowed by applicable Laws on all Return Items, which TeleCheck may collect and retain from consumers.
1.9. “Goodwill” of an Ineligible Item. TeleCheck may elect to provide warranty coverage for an Ineligible Item that Company submits for processing. Providing warranty coverage for an Ineligible Item will not constitute a course of dealing,waiverof rights,or preventTeleCheckfrom rejectingwarrantycoverageforanyotherIneligibleItems.F. Requirements for Mobile Checks or any Checks Approved as Paper Only. If TeleCheck approves an Item as a paper check that couldnot be settledas an electronicfundstransfer(i.e.checkisto be deposited by Company) or the check is submitted to TeleCheck as an image through a mobile device (either, a Paper Settlement Item), the following requirements apply in addition to those in Section 1.4 A above: (a) the checkmust includethe consumer’sname (imprinted by the manufacturer), physical address (imprinted by the manufacturer or written on the check according to TeleCheck’s operating guidelines – P.O.Boxes will not be accepted),phonenumber(withareacode),identificationtypeandnumber (imprinted or written on check), Company’sTeleCheckSubscriber Number and TeleCheck’s approval code; (b) the consumer’s signature must reasonably match the name imprinted on the check and (c) Company must send Paper Settlement Items that were presented in-person at Company’s point of purchase and that become Return Items directly from its financial institution to TeleCheck within 30 days of the date on the check. If the Paper Settlement Item was mailed in or submitted in a drop box by the consumer to Company,or if the Item waspresented by the consumer to Company and submitted through a mobile device by Company to TeleCheck, and subsequent to the transaction TeleCheck instructs Company to deposit the check (due to image quality issues (a Redeposit Check Item), Company must deposit the Redeposit Check Item within 2
1.10. Updating Information. Company will promptly notify TeleCheck if (a) a consumer makesany payment to Company or returns any goods in connectionwitha Return Item that is subject to warrantycoverage,or (b) Company cancels any services paid for by an Item that is subject to warranty coverage; both representing a full or partial satisfaction of the Return Item. Company’snotice of payment or cancellation of services will identify theconsumer.
1.11. Chargeback. TeleCheck may chargeback any Eligible Item that it purchased from Company for coverage under the Information Warrantyif:
(1) theconsumerreturnedthegoodsor services(inwholeor in part) that werepaidforwiththeItem;
(2) Company hasnotdelivered the goods or services that were paid for using the Item;
(3) the Item is subject to anystop payment,dispute,or setoff; (4) the consumer makesfull or partial payment to Company for the Item, or providesanyformof securityto ensureits payment;
(5) the goods or serviceswereinitiallydeliveredon creditor under a lease;
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 with the Services. Company authorizes TeleCheck to (a) initiate credits to the Settlement Account for proceeds that correspond to Company’s transactions; (b) initiate debits to the Settlement Account for any amounts that may be owed or are required to be paid under this Agreement; (c) initiate the transaction to a consumer’s deposit account on Company’s behalf for Items that are owed to it; and (d) initiate adjustments related to the foregoing (including, without limitation, adjustments for chargebacks or partial adjustments). TeleCheck may initiate any transfer by Automated Clearing House (ACH) entry.
(6) the purchase transaction, the payment represented by the Item, or transferring the Item to TeleCheck(by assignmentor otherwise)isvoid or invalid for any reason other than theconsumer’sbankruptcy; (7) Company breachesthe applicable warranty requirementsfor Eligible Items;
(8) Company submits multiple Items or duplicate Items related to the same transaction for processing (e.g., deposits a paper Item previously submitted for processing as an electronic Item without TeleCheck’s directiontodoso); 3.2. TeleCheck reserves the right to decline processing any Item.
TeleCheck will initiate a funds transfer for Company’s transactions thatwereprocessedunderthisAgreement;lessanyamountsdue from Company for fees, refunds, adjustments or its other obligations. TeleCheck will typically credit Company’s settlement funds to its Settlement Account within 2 banking days once the transactions are finally submitted to TeleCheck for settlement processing.
(9) Company does not submit its Items to TeleCheck for processing within1 calendardayof thetransactiondate(forbatchprocessing,Items must be submitted to TeleCheckfor processing within 7 calendar days of thetransactiondate);
(10) the consumer disputes authorizing the Item, its validity, or the amountdebited for it (exceptin the case of third partyfraud committed withaconsumer’scheck); 3.3. TeleCheck may recover amounts associated with any adjustments for an Item that are made to the Settlement Account at Company’srequest or due to its error. TeleCheck may also recover amounts associated with any fees that a consumer paid to its financial institution because of these adjustments.
(11)the consumer’s Authorizationisincomplete or invalid; (12) Company fails to provide TeleCheck with a legible copy of an Authorizationwithin7 daysof a request for it; or
(13) Company breaches this Agreement, alters an Item or approvalcode, or submitsan ItemwithKnowledgeit islikely to become a Return Item.
Knowledge means facts or circumstances which, if known, would cause a merchant, using commercially reasonable judgment, to independently refuse to accept an Item (including, without limitation, splitting single transactions into smaller components or resubmitting Items that were previously denied).
3.4. Company must promptly notify TeleCheck if it fails to receive any settlement funds or if there are any changes to the Settlement Account.
Transfer of settlement funds may be delayed or misdirected if Company provides inaccurate information about, or fails to notify TeleCheck of changes to, the Settlement Account. TeleCheck is not responsible for settlement errors that arise if Company provides inaccurate information about, or fails to notify TeleCheck of changes to, theSettlement Account.
Company will immediately notify TeleCheck if it has Knowledge that any of the above circumstances occur.Company will continue to be responsible for its chargebacks after termination of this Agreement. TeleCheck may chargeback any amounts that exceed the Warranty Maximum for an Eligible Item.
Financial Information. Company will promptly provide any financial4. or otherinformationreasonablyrequestedby TeleCheckto performcredit risk, security, qualification, and other reviews related to providing the Services, transactions submitted, fulfillment of obligations to TeleCheck, or the financial condition of Company. Company authorizes TeleCheck to obtaininformationfromthirdpartieswhenperformingcreditrisk,security, qualification,andotherreviews.
2. Non-Warranty Services.
2.1. If any of the verification services or the Specialty Items (Settlement Only) services are selected by Company in the Merchant Processing Application (Non-Warranty Services), TeleCheck will have no liability for any Item that is processed using the Non-Warranty Services that is subsequently returned, dishonored, reversed or otherwise unpaid, and does notwarranty the checksprocessedusing the Non-WarrantyServices.
There will be no payment to Company for any loss from transactions processed through the Non-Warranty Services. Companyassumes all risks that Items accepted by Company may result in Return Items.
Company will be fully responsible and liable to TeleCheck for all Return Items, regardless of the reason or timing. TeleCheck will deduct or offset all Return Items against any amounts to be paid to Company for Items to settled under this Agreement or, alternatively, TeleCheck may initiate debits to Company’s Settlement Account (defined in Section 3.1 below) for all such Return Items.
5. Notice of Material Changes. Company will provide TeleCheck with reasonableadvance notice of any materialchange in the nature of Company’s business (including, without limitation, any change to Company’soperationsthatwould materiallyaffectitsproductssold, servicesprovided,or theproceduresitfollowsforpaymentsacceptance).
The failure to provide TeleCheck with this notice constitutes a material breach of thisAgreement.
6. Company’s Payment Obligations.
Fees. Company will pay TeleCheck for: (a) all fees and charges for the Services that are set forth in the TeleCheck Service Application and Agreement;(b) allItemsthatarechargedback;(c)alladjustmentsrequired in connection with Company’stransactions; and (d) allcosts,liabilities, or other obligations imposed on TeleCheck by third parties as a result of transactions submitted by Company, its actions, or inactions.
2.2. Representations and Warranties. Company represents and warrants that each Item submitted under any of the Non-Warranty Services complies with the following, (a) the Item was submitted to TeleCheck in accordance with the TeleCheck’s operating guidelines and specifications, (b) the consumer authorized debiting its accountby electronic funds transfer or remotely created check for the amount of the Item in accordance with in accordance with the TeleCheck’s operating guidelines and specifications and NACHA Rules including, without limitation, providing any necessary notices to consumer (not applicable to the Specialty Items (Settlement Only) services) and (c) the requirements in Sections 1.4. B., C. and D (as applicable to the type of Item presented) have been complied with.
6.1. Other Fees. Company will also pay TeleCheck for the following feesandchargesfortheServices(asapplicable):(a)CustomerRequested Operator Call Fee (also called CROC or Voice Authorization Fee), which is an additional $2.50 fee per operator or Interactive Voice Response (IVR)- assisted call that Company initiates, but TeleCheck does not request; (b) December Risk Surcharge, which is an additional percentage charge added to the Inquiry Rate for each authorization inquiry in the month of December; (c) Funding Report Fee, which is a $10.00 monthly fee to receive daily funding or weekly funding reports (the Funding Report Fee does not apply if TeleCheck provides the funding report monthly); (d) Inquiry Rate, which is the percentage rate that applies to the face amount of each Item (up to the Warranty Maximum) that Company submits to TeleCheck for authorization (whether or not TeleCheck issues an approval code for the Item); (e) Monthly Minimum Fee, which is the minimum aggregate amount of the Inquiry Rate fees that Company must pay on a monthly
3. Settlement.
3.1. Company will identify one or more bank accounts held in its name (each, a Settlement Account) that TeleCheck will use in connection WFB2210(Rev00-10/19) 64
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10. Term. This Agreement begins on the earlier of the dates when Company signs its TeleCheck Services Application and Agreement, submits its first Item for processing under this Agreement, or when Company downloads the App (this date, the Effective Date). The length of this Agreement’s initial term is designated in theTeleCheck Services Application and Agreement (Initial Term). This Agreement will automatically renew for successive one-year periods (each, a Renewal Term), unless TeleCheck or Company provides the other with at least 30 days’writtennoticeof non-renewalat the end of theInitialTerm.TheInitial TermtogetherwithanyRenewalTerm(s)is the Term of thisAgreement. basis (if the total Inquiry Rate fees for Company’s Items submitted during any month is less than the Monthly Minimum Fee, then the Monthly Minimum Fee will apply); (f) Monthly Processing Fee is a monthly fee for handling Company’s account; (g) Special Handling Fee, which is a $5.00 fee applied when the followingoccur: (1) a chargebackof an Eligible Item, (2) an Item processed for payment must be corrected due to Subscriber’s erroror atSubscriber’srequest,or (3)TeleCheckelects(initsdiscretion)to processan Item that fails to meettheapplicablewarrantyrequirements,or that is a Return Item, as a “Goodwill” Item; (h) Transaction Fee, which is the additional per transaction charge for each Item that Company submits to TeleCheck for authorization or processing (whether or not TeleCheck issues an approval code for the Item); and (i) Unauthorized Return Fee is a fee applicable to any Item that is dishonored, returned, reversed, or otherwise not paid by the Consumer’s financial institution for the reason that such Item is unauthorized by the Consumer.
11. Termination; Modification; Suspension.
11.1.General Termination. Either Company or TeleCheck may terminate this Agreement by giving 30 days’ advance notice if the other materially breachesthisAgreementand fails to remedy the breachwithin 30 days of receiving notice of it. TeleCheck may terminate this Agreement upon written notice to Company for any reason (with or without cause) during its Term. If the Services are delivered through TeleCheck’s App, Company may terminate this Agreement for any reason (with or without cause) during its Term by uninstalling the App. 11.2. Modification. TeleCheck may modify thisAgreement’sterms(including,without limitation, its fees) upon 30 days’ notice to Company, during which notice period Company may terminate this Agreement by providing written notice of termination to TeleCheck. Company’s continued use of the Services after the 30 day period contained in a notice of modification from TeleCheck will constitute Company’s acceptance of the new terms.
6.2. Early Termination Fee. TeleCheck will suffer substantial injury, for which it would be difficult to determine damages, if Company breaches thisAgreementor terminatesit early in violation of the Agreement’sterms.
TeleCheck may recover damages equal to 90% of the aggregate Monthly Minimum Fees and Monthly Processing Fees that are payable for the unexpired portion of the then-current Term as an accurate reflection of these damages and realistic pre-estimate of TeleCheck’s losses caused by an earlyterminationof thisAgreement.
7. Reserve.
7.1.TeleCheck may require Company to fund a cash reserve (Reserve) in an amount that reflects TeleCheck’ assessmentof risk, as it may determine in its discretion from time-to-time. The Reserve is a payment obligation of TeleCheck, established by holding back transaction proceeds or debiting the Settlement Account in order to potentially offset any obligations that Company may have to TeleCheck. The Reserve is not a segregated fund that Company may claim to own. TeleCheck is obligated to pay to Company any amounts remaining from the Reserve after all other then- current and contingent liabilities or obligations related to Company’s payment transactions have expired.
11.3 Suspension. TeleCheck may suspend its Services or settlement of any funds under this Agreement if it determines that questionable activity occurs with respectto Company’spayment transactions(including,without limitation, if there are excessive Return Items associated with Company’s Items, Company breaches the NACHA Rules, or if required by applicable laws. TeleCheck may also suspend or terminate its Services if requested by its Originating Financial Depositary Institution.
12. Confidential Information.
12.1. Confidentiality. Neither party will disclose non-public information about the other party’s business (including, without limitation, the terms of this Agreement, technical specifications, customer lists, or information relatingto a party’soperational,strategic,or financialmatters)(together, Confidential Information). Confidential Information does not include information that: (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses beforeitsdisclosure;(3)isindependentlydevelopedwithoutrelianceon thediscloser’sConfidentialInformation;or (4) is received from a thirdparty that is not obligated to keep it confidential. Each party will implement and maintain reasonable safeguards to protect the other party’s Confidential Information.
7.2. The obligations due to Company from the Reserve will not accrue interestunlessrequiredbyapplicableLaws.
7.3. TeleCheck will notify Company if a Reserve is established (including its amount) or if the amount of theReserveismodified.
7.4. TeleCheck may set off any obligations that Company owes to TeleCheck from the Reserve.
7.5 Although Company acknowledges that the Reserve is a general obligation of TeleCheck, and not a specifically identifiable fund, if any person claims that the Reserve is an asset of Company that is held by TeleCheck, Company grants and acknowledges that TeleCheck have a security interest in the Reserve and, at TeleCheck request, will provide documentation to reflect this security interest.
12.2. Disclosure. The recipient may disclose the other party’s Confidential Information: (1) to its directors, officers, personnel, and representatives (including those of its subsidiaries, affiliates, subcontractorsorvendors)thatneedtoknowitinconnectionwith the recipient’s performance under this Agreement, and are bound by confidentialityobligationsmateriallysimilarto thoserequired underthis Agreement;and(2)inresponsetoa subpoena,courtorder,orasrequired under applicable Laws or NACHA Rules.
8. Setoff and Priority. All funds that TeleCheck owes to Company under this Agreement are subject to Company’s payment obligations under this Agreement. TeleCheck may setoff or recoup amounts Company owes to TeleCheck against any funds that TeleCheck owes to Company.
9. Statements, Reporting. TeleCheck will provide Company with statements or electronic reporting (together, Statements) reflecting the fees, settlement amounts, and other information related to the Services.
Company must review the Statements and inform TeleCheckof any errors within 60 days following the date that the error was, or should have been, reported;provided,Companymustreportsettlementorfundingerrors to TeleCheck within 30 days (reporting errors will enable TeleCheck to recover amounts or prevent them from continuing). TeleCheck will have no obligation to provide refunds for errors that Company reports more than60 daysor30days(asapplicable)aftertheerrorswere,or shouldhave been, reported. Company and TeleCheck will work together to resolve issues or disputes that arise in connection with the Statements, or the fundscredited or debited to the SettlementAccount.
13. Data Use; Security.
13.1.Data Use. TeleCheck owns all right, title and interest in the data it obtains from providing the Services to Company.
13.2 Data Security. Company will implement commercially reasonable practices, including administrative, physical and technical safeguards, that are designed to: (a) maintain the security and confidentiality of Consumer Information, (b) protect against reasonably anticipated threats to the security or integrity of Consumer Information, and (c) protect against unauthorized access to or use of Consumer Information that could resultin substantialharmor inconvenienceto the consumer.Consumer Information is customer information Company receives in connection with WFB2210(Rev00-10/19) 65
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 for the information that TeleCheck provides through its Services, will use the information in connection with submitting paymenttransactions to TeleCheckfor processing and for no other purpose, and will use the informationonly for permissible purposes under the FairCreditReporting Act (Company will not use TeleCheck’s information for employment related purposes).
any transaction contemplated by this Agreement.
14. License to Marks. TeleCheck grants Company a limited, non- exclusive, non-transferrable, non-sublicensable, royalty-free license to use the trademarks, service marks and logos (together, Marks) that TeleCheck provides to Company during the Term of this Agreement. Company (a) may use the Marks only in the United States; (b) may use the Marks only in connection with its use of the Services; (c) will follow the branding guidelines that TeleCheck provides or makes available from time-to-time; and (d) will not use materials containing the Marks without TeleCheck’s prior written permission. Company will not otherwise distribute, lease, sublicense, sell, modify, copy or create derivative works from the Marks.
TeleCheck reserves to itself all right, title, interest or license (express or implied) to the Marks that are not specifically granted to Company under this Agreement; and may suspend or terminate this license upon written notice to Company.
21.2 Choice of Law; Waiver of Jury Trial. This Agreement will be governed by New York law (without regard to its choice of lawprovisions).
The courts of New York, New York will be the proper venue for legal proceedingsbroughtin connectionwiththisAgreement.TeleCheckand Company each waive their right to a jury trial for claims arising in connection with this Agreement.
21. Entire Agreement, Amendment, Counterparts. The defined term Agreement includes its schedules, addenda, and any amendments (capitalized terms used in the schedules, addenda, or amendments without definition will have the meanings given to them in this Agreement). This Agreement is the entire agreement between the parties and replaces any prior agreements or understandings (written or oral) with respect to its subject matter. Except as set forth in Section 11.2, modifications to this Agreement must be in writing, executed by the parties. This Agreement and any amendments may be executed electronically and in counterparts, each of which constitutes one agreement when taken together. Electronic and other copies of the executed Agreement are valid.
15. Indemnification. Company will indemnify, defend, and hold TeleCheck harmless for all losses, damages, costs, or expenses (including reasonable attorney’s fees) claimed against it by third parties, which arise from Company’s gross negligence, willful misconduct, or breach under this Agreement.
16. Exclusion of Damages. Neither party will be liable to the other forlostprofits,revenuesorbusinessopportunities,noranyexemplary, punitive, special, indirect, incidental, or consequential damages (whether any are direct or indirect); regardless of whether these damages were foreseeable or either party was advised they were possible.
22. Assignment. Company may not assign this Agreement without TeleCheck’s written consent. TeleCheck may assign this Agreement upon notice to Company. This Agreement will be enforceable against a party’s permitted successors or assigns. This Agreement may not be continued, assumed, or assigned in the event of a bankruptcy or other insolvency eventwithoutconsentfromthenon-bankruptorinsolventparties.
17. Limitation of Liability. TeleCheck’ aggregate liability to Company for lossesarising from any cause (regardlessof the form of action or legal theory)inconnectionwiththisAgreementwillbelimitedto$75,000.00
18. Notices. Written notices (other than normal operations) required under this Agreement will be sent by certified mail or national courier (with tracking and delivery confirmation). TeleCheck may also provide written notices required under thisAgreementby regular mail.Noticeswill be effective upon receipt. Noticesto Company will be sent to the address it provides on the TeleCheck Service Application and Agreement. Notices to TeleCheck will be sent to: TeleCheck Services, Inc., Attn: TeleCheck Merchant Services, Mail Stop A-12, 7301 Pacific Street, Omaha, NE 68114; with copies to TeleCheck Services, Inc., Attn: General Counsel’s Office, 3975 N.W.120th Avenue, Coral Springs, FL 33065 and legalpapers@ firstdata.com
19. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement other than TeleCheck’ subsidiaries and affiliates involved in providing the Services to Company. Each party is responsible for the performance of any third parties it uses in connection with the Services, and their compliance with the terms ofthis Agreement. TeleCheck is not responsible or liable to Company for any errors or breaches of this Agreement that occur because of Company’s third party providers (e.g., without limitation, issues that arise from ACH network participants, or if Company uses third party providers or applications to capture electronic images of Items to submit to TeleCheck). TeleCheck may audit Company’s compliance with this Agreement upon reasonable notice, during normal business hours, and at TeleCheck’s expense; and as required by the NACHA Rules. TeleCheck’s Originating Depository Financial Institution may also audit Company’s compliance with this Agreement and the NACHA Rules.
20. Waivers. A party’s delay or failure to exercise any of its rights under thisAgreementwill not be a waiverof those rights.
21. Compliance with Law, Choice of Law, Waiver of Jury Trial.
21.1. Compliance with Law. The parties will comply with all laws, regulations, and rules (including ACH’s network rules, requirements, and standards; the NACHA Rules) (together Laws) that are applicable to their respective performance obligations under this Agreement. Company acknowledges that it is the Originator under the NACHA Rules with respectto its transactionsandagreesto comply with itsobligationsas an Originator. Company certifies that it has a legitimate business need WFB2210(Rev00-10/19) 66
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 WFB2210 (Rev 00 - 10/19)
© 2019 Wells Fargo Bank, N.A. All rights reserved.
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 Commercial Account Signature Card
I. Account Title(s)
Account #1 CoID
(Internal Use Only)
Account #2
Title Line 1
CoID
(Internal Use Only)
Title Line 1
(Customer’s full legal name matching Customer’s formation documents and TIN certification documentation- 40 characters max.)
(Customer’s full legal name matching Customer’s formation documents and TIN certification documentation- 40 characters max.)
Optional Account Title Lines (40 characters max per line.) Optional Account Title Lines (40 characters max per line.) Title Line 2 Title Line 2
Title Line 3 Title Line 3
Title Line 4 Title Line 4
(If applicable, enter DBA name on last available title line) (If applicable, enter DBA name on last available title line) II. Regulation GG Certification
Customer or any entity for which account(s) will be maintained (f/b/o) engaged in business of internet gambling? Yes No III. Authorized Account Signers
#1
Signature Printed Name Position/Title
Signer role-Please Select one. If no selection default will be limited signer. Refer to section IV for authority definitions.
Limited Signer Authorized Agent Principal Officer/Key Executive Owner If principal Officer/Key Executive or Owner are selected, banker must provide CIS customer number:
#2
#3
#4
Signature Printed Name Position/Title
Signer role-Please Select one. If no selection default will be limited signer. Refer to section IV for authority definitions.
Limited Signer Authorized Agent Principal Officer/Key Executive Owner If principal Officer/Key Executive or Owner are selected, banker must provide CIS customer number:
Signature Printed Name Position/Title
Signer role-Please Select one. If no selection default will be limited signer. Refer to section IV for authority definitions.
Limited Signer Authorized Agent Principal Officer/Key Executive Owner If principal Officer/Key Executive or Owner are selected, banker must provide CIS customer number:
Signature Printed Name Position/Title
Signer role-Please Select one. If no selection default will be limited signer. Refer to section IV for authority definitions.
Limited Signer Authorized Agent Principal Officer/Key Executive Owner If principal Officer/Key Executive or Owner are selected, banker must provide CIS customer number:
IV. Customer Acknowledgement & Agreement
On behalf of the customer, I hereby certify, by my signature below, that each of the individuals designated in Section III above as Commercial Account Signature Card
595253 (Rev 00) -- 10/19
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 (a) a "Limited Signer" is authorized, acting alone, to (i) sign checks drawn on the account(s) and (ii) instruct Wells Fargo with respect to stop payment order(s). (b) an "Authorized Agent" is authorized, acting alone, to (i) sign checks drawn on and make cash withdrawals from the accounts(s), (ii) instruct Wells Fargo with respect to stop payment order(s) and (iii) initiate funds transfers by ACH, wire or other means from the account(s) in accordance with the customer's contractual arrangements with Wells Fargo regarding these services. (c) a "Principal Officer/ Key Executive" is authorized, acting alone, to (i) sign checks drawn on and make cash withdrawals from the accounts(s), (ii) instruct Wells Fargo with respect to stop payment order(s) and (iii) initiate funds transfers by ACH, wire or other means from the account(s) in accordance with the customer's contractual arrangements with Wells Fargo regarding these services. Additional information may be requested from all named Principal Officers/Key Executives according to Wells Fargo's customer due diligence policies. (d) an "Owner" is authorized, acting alone, to (i) sign checks drawn on and make cash withdrawals from the accounts(s), (ii) instruct Wells Fargo with respect to stop payment order(s) and (iii) initiate funds transfers by ACH, wire or other means, including to personal and business account(s) in accordance with the customer's contractual arrangements with Wells Fargo regarding these services. Additional information may be requested from all named Owners according to Wells Fargo's customer due diligence policies.
Wells Fargo may obtain credit reports or other information about the customer. Wells Fargo may disclose information about each account to its affiliates, to credit reporting agencies, and to other persons or agencies that, in Wells Fargo's judgement, have a legitimate purpose for obtaining the information.
I acknowledge that the customer has received the Wells Fargo Commercial Account Agreement and agrees its terms and conditions, as amended from time to time, will govern the account(s).
Printed Name Position/Title
DateAuthorized Signature
V. Taxpayer Certification
Please provide a copy of the most current version of IRS form W-9 or W-8. Tax forms are subject to review and withholding could apply if forms are incomplete or inaccurate.
W-9 provided for U.S. Entity
Taxpayer Identification Number (TIN)
Enter your TIN on the appropriate line below. The TIN provided must belong to the Customer whose full legal name is provided in Section I, Title Line 1 and match the W-9 provided. For individuals, this is your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Form W-9 Part I instructions at www.irs.gov for additional information. For other entities, it is your employer identification number (EIN). The number provided below applies to all accounts listed on this signature card.
Social Security Number (SSN) Employer Identification Number W-8 provided for non-U.S. Entity
Bank Use Only
Banker Name Banker Telephone
RAU
Banker MAC
Officer #AU
Submitter Name Submitter Phone #
© 2019 Wells Fargo Bank, N.A., All rights reserved.
Commercial Account Signature Card
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 Authorization Certificate
Depository Accounts and Treasury Management Services
The undersigned hereby certifies that he or she is the duly appointed authorized representative of (Account holder's complete legal entity/company name), a (description of Account holder's business entity type) ("Customer"), with authority to act on behalf of Customer, and that the following are true and correct resolutions duly adopted by Customer, in accordance with its formation and governing documents, and that these resolutions have not been in any way altered, amended or rescinded, and are now in full force and effect:
The undersigned further certifies that any one of the following named persons, whose signatures are set forth opposite their names (and titles, if applicable):
Name Title (if applicable) Signature or Facsimile
Signature1
Business Phone
Number
Business Email Address
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
#1
#2
#3
#4
#5
#6
is individually authorized to, and to designate one or more other Customer officers, agents or employees (each such aforementioned person, officer or designee thereof is referred to herein as an "Authorized Representative") to: (a) open or close one or more deposit and/or securities accounts (the "Accounts") with Wells Fargo Bank, National Association ("Bank"); (b) execute and deliver in Customer's name such agreement(s) regarding the Accounts and the services related thereto as Bank may from time to time require; (c) authorize and execute transactions on the Accounts, including, without limitation, (i) signing checks and other instruments withdrawing funds from the Accounts, including those payable to cash or to persons who sign them, (ii) requesting funds transfers by Bank to and from the Accounts, (iii) entering into arrangements for the processing of automated clearing house (“ACH”) debit entries and/or ACH credit entries to and from the Accounts, and (iv) endorsing on behalf of Customer, and otherwise negotiating, checks and other items payable to Customer; (d) incur overdrafts and other obligations in the Accounts at Bank in connection with any of the products, services, or activities authorized by these resolutions; and (e) invest Customer's funds on such terms and conditions as such Authorized Representative deems appropriate.
Customer is authorized to enter into any other arrangements, agreements and documents with respect to any of Bank's deposit and treasury management products and services, in such form and on such terms and conditions as may be agreed to by an Authorized Representative signing such agreements and documents.
Customer shall be bound to Bank by, and Bank may rely upon, any communication or act, including telephone communications, purporting to be done by any partner, employee or agent of Customer provided that Bank believes, in good faith, that the same is done by a person authorized to so act.
The authority hereby conferred is in addition to that conferred by any other certificate heretofore or hereafter delivered to Bank and shall continue in full force and effect until Bank shall have received notice in writing from Customer of the revocation hereof. Any such revocation shall be effective only as to actions which are taken by Customer pursuant to the certifications contained herein, subsequent to Bank's receipt of such notice. The authority hereby conferred shall be deemed retroactive, and any and all acts authorized herein which were performed prior to the execution of this certificate are hereby approved and ratified.
The undersigned further certify that the activities covered by the foregoing certifications constitute duly authorized activities of Customer; that said certifications are now in full force and effect; and that there is no provision in any document pursuant to which Customer is organized and/ ___________________________________
1 Facsimile Signature/Logo. Customer authorizes the use of facsimile signatures/logos in connection with its agreements with and instructions to Bank if the facsimile/logo is provided on this form. Customer agrees its use of the facsimile/logo will be governed by Bank's Commercial Account Agreement.
Authorization Certificate - Non-Personal Accounts
(Revised 09/24/2019)
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 or which governs Customer's continued existence limiting the power of the undersigned to make the certifications set forth herein, and that the same are in conformity with the provisions of all such documents. ____________________________________________________
ACKNOWLEDGED & AGREED TO:
By/Signature:
Printed Name:
(this individual must be a duly appointed representative of the TIN of record) Title (if applicable):
Date:
Tax Identification Number of Customer:
(TIN of the Account holder as assigned by the IRS)
Public Funds Customers Only: Unless Customer otherwise specifically instructs Bank in writing, Bank will consider each of the Authorized Representatives listed above to be an "Official Custodian" as referenced in 12 C.F.R. 330.15 for the purposes of calculating Customer's deposit insurance coverage.
© 2019 Wells Fargo Bank, N.A., All rights reserved.
Authorization Certificate - Non-Personal Accounts
(Revised 09/24/2019)
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 Government Customer Certification
The undersigned certifies that he or she is the authorized representative of the Customer named below with the authority to act on behalf of the Customer and certifies that the information provided below is complete, correct, and in accordance with the Customer’s governing documents now in full force and effect.
Customer Information
Full Legal Name with no abbreviations (Must match the governing/organizational document(s) and TIN certification documentation)
Registered Physical Business Address
Tax Identification Number TIN is shared with another entity? Yes No
State of Registration
Organizational Type (As indicated on the governing/organizational documentation - Must Select One) Government Entity Political Subdivision Government Agency Government Instrumentality (If selected, copy of
Organizational documents required)
Government Agency (For Public Colleges/Universities,
copy of Organizational documents required)
Key Principal(s) Information
The Key Principals and document Signer (below) must represent individuals who serve in the following capacity for the Customer:
Individuals with day-to-day or strategic control/management of the customer and responsibility for the supervision and quality of accounting and financial reporting of the customer. (Examples include but are not limited to: Head of the Executive Branch, Director, City Manager/County Manager, or their equivalent(s), Controller/Treasurer, Finance Director, or their equivalent(s), etc.).
Legal Name Title/Position Personal Address Date of Birth Acknowledged & Agreed To
By/Signer
Title
Printed Name
Date
593022 (Rev 06 – 10/2018) For Government and Institutional Banking Use Only Page 1 of 1 Item 7
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DocuSign Envelope ID: 88344AA5-5208-4B94-BE72-CB721C5A4721 Form W-9 Request for Taxpayer Give Form to the
requester. Do not
send to the IRS.
Identification Number and Certification(Rev. October 2018) Department of the Treasury
Internal Revenue Service a Go to www.irs.gov/FormW9 for instructions and the latest information. 1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 2 Business name/disregarded entity name, if different from above 3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the 4 Exemptions (codes apply only to following seven boxes. certain entities, not individuals; see instructions on page 3):
Individual/sole proprietor or
single-member LLC
C Corporation S Corporation Partnership Trust/estate
Exempt payee code (if any)
Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) a Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check Exemption from FATCA reporting LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that code (if any) is disregarded from the owner should check the appropriate box for the tax classification of its owner.
Other (see instructions) a (Applies to accounts maintained outside the U.S.) 5 Address (number, street, and apt. or suite no.) See instructions. Requester’s name and address (optional) 6 City, state, and ZIP code
7 List account number(s) here (optional)
Part I Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.
Social security number
– –
or
Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter.
Employer identification number
–
Part II Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and
3. I am a U.S. citizen or other U.S. person (defined below); and
4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
Sign
Here
Signature of
U.S. person Datea a
General Instructions • Form 1099-DIV (dividends, including those from stocks or mutual funds)
Section references are to the Internal Revenue Code unless otherwise noted. • Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.
• Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
• Form 1099-S (proceeds from real estate transactions)
Purpose of Form • Form 1099-K (merchant card and third party network transactions) An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
• Form 1099-C (canceled debt)
• Form 1099-A (acquisition or abandonment of secured property) Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.
• Form 1099-INT (interest earned or paid)
Cat. No. 10231X Form W-9 (Rev. 10-2018)
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By signing the filled-out form, you: Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9. Backup WithholdingDefinition of a U.S. person. For federal tax purposes, you are What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
considered a U.S. person if you are:
• An individual who is a U.S. citizen or U.S. resident alien; • A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States; • An estate (other than a foreign estate); or
• A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the instructions for Part II for details),
3. The IRS tells the requester that you furnished an incorrect TIN,In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
• In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
• In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
Certain payees and payments are exempt from backup withholding.
See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.• In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust. Also see Special rules for partnerships, earlier.
Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
What is FATCA Reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
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Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
IF the entity/person on line 1 is
a(n) . . .
THEN check the box for . . .
• Corporation CorporationMisuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties. • Individual • Sole proprietorship, or
• Single-member limited liability
company (LLC) owned by an
individual and disregarded for U.S.
federal tax purposes.
Individual/sole proprietor or single-
member LLC
Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return. • LLC treated as a partnership for Limited liability company and enter U.S. federal tax purposes,
• LLC that has filed Form 8832 or (P= Partnership; C= C corporation; 2553 to be taxed as a corporation, or S= S corporation) or
• LLC that is disregarded as an
entity separate from its owner but
the owner is another LLC that is
not disregarded for U.S. federal tax
purposes.
If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.
the appropriate tax classification.
a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name. • Partnership
• Trust/estate
Partnership
Trust/estate
Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application. Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.
b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or “doing business as” (DBA) name on line 2.
Exempt payee code.c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entity's name as shown on the entity's tax return on line 1 and any business, trade, or DBA name on line 2.
• Generally, individuals (including sole proprietors) are not exempt from backup withholding.
• Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
• Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions. • Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.
e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulations section 301.7701-2(c)(2)(iii). Enter the owner's name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner's name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity's name on line 2, “Business name/disregarded entity name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9.
This is the case even if the foreign person has a U.S. TIN.
The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4. 1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)
2—The United States or any of its agencies or instrumentalities 3—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities 4—A foreign government or any of its political subdivisions, agencies, or instrumentalities
Line 2 5—A corporation
6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3 7—A futures commission merchant registered with the Commodity Futures Trading CommissionCheck the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.
8—A real estate investment trust
9—An entity registered at all times during the tax year under the Investment Company Act of 1940
10—A common trust fund operated by a bank under section 584(a) 11—A financial institution
12—A middleman known in the investment community as a nominee or custodian
13—A trust exempt from tax under section 664 or described in section 4947
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The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
M—A tax exempt trust under a section 403(b) plan or section 457(g) plan
Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.
IF the payment is for . . .
Interest and dividend payments
Broker transactions
THEN the payment is exempt
for . . .
Line 5All exempt payees except
for 7 Enter your address (number, street, and apartment or suite number).
This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.
Exempt payees 1 through 4 and 6
through 11 and all C corporations.
S corporations must not enter an
exempt payee code because they
are exempt only for sales of
noncovered securities acquired
prior to 2012. Line 6
Enter your city, state, and ZIP code.Barter exchange transactions and patronage dividends
Exempt payees 1 through 4
Part I. Taxpayer Identification Number (TIN)
Payments over $600 required to be Generally, exempt payees Enter your TIN in the appropriate box. If you are a resident alien and reported and direct sales over
$5,0001
1 through 52 you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.Payments made in settlement of
payment card or third party network
transactions
Exempt payees 1 through 4
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.
1 2
If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN.
See Form 1099-MISC, Miscellaneous Income, and its instructions.
However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency.
Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately.
To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) written or printed on the line for a FATCA exemption code.
www.SSA.gov. You may also get this form by calling 1-800-772-1213.
Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days.A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37) If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments.
You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
B—The United States or any of its agencies or instrumentalities C—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i) Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. CertificationG—A real estate investment trust
H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.
I—A common trust fund as defined in section 584(a)
J—A bank as defined in section 581
K—A broker
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.L—A trust exempt from tax under section 664 or described in section 4947(a)(1) Signature requirements. Complete the certification as indicated in items 1 through 5 below.
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1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983.
You must give your correct TIN, but you do not have to sign the certification.
For this type of account: Give name and EIN of:
14. Account with the Department of
Agriculture in the name of a public
entity (such as a state or local
government, school district, or
prison) that receives agricultural
program payments
The public entity
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
15. Grantor trust filing under the Form
1041 Filing Method or the Optional
Form 1099 Filing Method 2 (see
The trust
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification. Regulations section 1.671-4(b)(2)(i)(B))
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
1 List first and circle the name of the person whose number you furnish.
If only one person on a joint account has an SSN, that person’s number must be furnished.
2 Circle the minor’s name and furnish the minor’s SSN.
3 You must show your individual name and you may also enter your business or DBA name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.
4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier.
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or
distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.
*Note: The grantor also must provide a Form W-9 to trustee of trust.
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
What Name and Number To Give the Requester Secure Your Tax Records From Identity Theft For this type of account: Give name and SSN of: Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
1. Individual The individual
2. Two or more individuals (joint
account) other than an account
maintained by an FFI
The actual owner of the account or, if
combined funds, the first individual on
the account1
To reduce your risk:3. Two or more U.S. persons Each holder of the account (joint account maintained by an FFI) • Protect your SSN, The minor2 • Ensure your employer is protecting your SSN, and • Be careful when choosing a tax preparer.
4. Custodial account of a minor
(Uniform Gift to Minors Act)
The grantor-trustee15. a. The usual revocable savings trust (grantor is also trustee) If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.b. So-called trust account that is not The actual owner 1 a legal or valid trust under state law
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
6. Sole proprietorship or disregarded
entity owned by an individual
The owner3
7. Grantor trust filing under Optional
Form 1099 Filing Method 1 (see
Regulations section 1.671-4(b)(2)(i)
(A))
The grantor*
For more information, see Pub. 5027, Identity Theft Information for Taxpayers.
Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
For this type of account: Give name and EIN of:
8. Disregarded entity not owned by an
individual
The owner
Legal entity4
The corporation
9. A valid trust, estate, or pension trust
10. Corporation or LLC electing
corporate status on Form 8832 or
Form 2553
Protect yourself from suspicious emails or phishing schemes.
Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
11. Association, club, religious,
charitable, educational, or other tax-
exempt organization
The organization
12. Partnership or multi-member LLC
13. A broker or registered nominee
The partnership
The broker or nominee
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6 Form W-9 (Rev. 10-2018)
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information.
Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer.
Certain penalties may also apply for providing false or fraudulent information.
If you receive an unsolicited email claiming to be from the IRS, forward this message to [email protected]. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at [email protected] or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338).
If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.
Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.
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Certificate Of Completion
Envelope Id: 0BD77910E7CB48F6A150C8FCEF27BA92
Subject: Please DocuSign: Lockbox, Merchant, and Banking Services with City of Palo Alto Source Envelope:
Status: Sent
Document Pages: 364 Signatures: 0
Initials: 0
Envelope Originator:
Josh MartinezCertificate Pages: 2
AutoNav: Enabled 250 Hamilton Ave
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
Palo Alto , CA 94301
[email protected]
IP Address: 199.33.32.254
Record Tracking
Status: Original Holder: Josh Martinez Location: DocuSign 9/30/2020 2:08:33 PM [email protected]
Security Appliance Status: Connected
Storage Appliance Status: Connected
Pool: StateLocal
Pool: City of Palo Alto Location: DocuSign
Signer Events Signature Timestamp
Corby Gordon Uploaded paper with hand
signature
Sent: 9/30/2020 4:01:55 PM
Viewed: 10/1/2020 6:33:09 AM
Signed: 10/1/2020 6:33:09 AM
[email protected]
SVP
Security Level: Email, Account Authentication
(None) Signature Adoption: Signed on Paper
Using IP Address: 159.45.22.19
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Cassie Coleman Sent: 10/1/2020 6:33:20 AM
[email protected]
Assistant City Attorney
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Ed Shikada
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events
Editor Delivery Events
Agent Delivery Events
Intermediary Delivery Events
Certified Delivery Events
Carbon Copy Events
Signature
Status
Status
Status
Status
Status
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
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Carbon Copy Events Status Timestamp
Josh Martinez Sent: 10/1/2020 6:33:20 AM
Viewed: 10/1/2020 7:30:14 [email protected] Administrative Associate III
City of Palo Alto
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Renee Howard
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Tarun Narayan
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Nelly Baumb
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Josh Martinez
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Dale Barton
[email protected]
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Witness Events
Notary Events
Signature
Signature
Timestamp
Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 10/1/2020 6:33:20 AM
Payment Events Status Timestamps
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Certificate Of Completion
Envelope Id: 88344AA552084B94BE72CB721C5A4721
Subject: Please DocuSign: Lockbox, Merchant, and Banking Services with City of Palo Alto Source Envelope:
Status: Completed
Document Pages: 182 Signatures: 14
Initials: 5
Envelope Originator:
Josh MartinezCertificate Pages: 2
AutoNav: Enabled 250 Hamilton Ave
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
Palo Alto , CA 94301
[email protected]
IP Address: 73.93.11.37
Record Tracking
Status: Original Holder: Josh Martinez Location: DocuSign 10/1/2020 7:51:12 AM [email protected]
Security Appliance Status: Connected
Storage Appliance Status: Connected
Pool: StateLocal
Pool: City of Palo Alto Location: DocuSign
Signer Events Signature Timestamp
Cassie Coleman Sent: 10/1/2020 8:14:15 AM
Viewed: 10/1/2020 9:01:17 AM
Signed: 10/1/2020 9:19:54 AM
[email protected]
Assistant City Attorney
Security Level: Email, Account Authentication
(None) Signature Adoption: Pre-selected Style
Using IP Address: 199.33.32.254
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Ed Shikada Sent: 10/1/2020 9:20:03 AM
Viewed: 10/1/2020 11:03:04 AM
Signed: 10/1/2020 11:05:24 AM
[email protected]
Ed Shikada, City Manager
City of Palo Alto
Signature Adoption: Pre-selected Style
Using IP Address: 199.33.32.254
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events
Editor Delivery Events
Agent Delivery Events
Intermediary Delivery Events
Certified Delivery Events
Carbon Copy Events
Signature
Status
Status
Status
Status
Status
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
Timestamp
Josh Martinez Sent: 10/1/2020 11:05:32 AM
Resent: 10/1/2020 11:05:35 AM
Viewed: 10/1/2020 11:11:23 AM
[email protected]
Administrative Associate III
City of Palo Alto
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
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Witness Events Signature
Signature
Status
Timestamp
Timestamp
Timestamps
Notary Events
Envelope Summary Events
Envelope Sent
Certified Delivered
Signing Complete
Completed
Hashed/Encrypted
Security Checked
Security Checked
Security Checked
10/1/2020 11:05:32 AM
10/1/2020 11:05:32 AM
10/1/2020 11:05:32 AM
10/1/2020 11:05:32 AM
Payment Events Status Timestamps
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City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Utilities
Meeting Date: April 7, 2025
Report #:2411-3827
TITLE
Approval of Contract Amendment Number 1 to Contract No. S23184191 with 3-GIS, LLC in the Amount of $132,000 for a Total Contract Not-to-Exceed Amount of $375,748, and Approving the Optional Two Year Extension of the Term Through August 14, 2027 to Provide Software Licensing and Technical Support of Services Related to Fiber-to-the-Premises (FTTP); and Authorize a Contingency Amount of $50,000 for Additional Integration Support Services if Needed. CEQA Status: Not a Project.
RECOMMENDATION
Staff recommends that City Council:
1. Approve and authorize the City Manager or their designee to execute amendment number 1 to Contract No. S23184191 with 3-GIS, LLC (3-GIS) to add new service Orders for technical support services and new 3-GIS software modeling for the fiber-to-the- premises (FTTP) network in the amount of $132,000, and approving the two-year additional extension term through August 14, 2027 for a new total not-to-exceed amount of $375,748 over a total term of five years; and
2. Authorize the City Manager or their designee to approve and execute any change orders to the agreement for additional services that may develop during the contract period through August 14, 2027, not to exceed a total of $50,000.
BACKGROUND
The City issued an informal solicitation on January 12, 2021 for a fiber management system (FMS). The FMS provides fiber asset management using Geographic Information System (GIS) mapping software to document and manage existing and planned fiber infrastructure, allowing the City to accurately document the location and status of fiber assets within the City. Prior to the solicitation, the City used older systems and physical maps to manage dark fiber records.
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processes which were insufficient for addressing discrepancies between records and field conditions, resulting in labor-intensive workarounds.
While the City was developing its fiber expansion plan to build a new fiber backbone and roll out a phased fiber-to-the-premises (FTTP) network, staff recognized the existing systems and manual processes for managing dark fiber were not manageable or scalable for such a large- scale deployment. A critical need for a modern FMS was identified, which is essential not only to address current system limitations, but also to enable efficient growth and sustainable management of the new expanding fiber infrastructure.
Staff issued an informal solicitation in 2022 and began evaluating FMS options that could provide asset management, licensing, integration capability, maintenance, and support. The ideal FMS would support the planning, engineering design, analysis, and maintenance of the facility network. It would provide modeling capabilities for all relevant equipment components.
Additionally, it would need to accommodate network connectivity from devices in the outside plant to any termination point within the inside plant, ensuring end-to-end visibility and management. In addition, staff required the FMS to integrate with the City’s ESRI ArcGIS Enterprise Geodatabase to enable a citywide base map view. Over the past several years, the City has been modernizing all maps into GIS to provide integrations, mobile and web capabilities, and analytical tools.
3-GIS provided the only FMS proposal which met the City’s requirements above, including integration with ESRI ArcGIS. 3-GIS also had experience supporting utilities and municipalities achieve widescale fiber buildouts.
ANALYSIS
The City awarded licensing, maintenance and support to 3-GIS in August 2022, with a three- year term through August 2025, and an option to extend an additional two years with Council approval through August 14, 2027. The City used a pre-qualified GIS integration vendors to perform the data migration and integration with the City’s ESRI geodatabase. This migration and integration faced significant challenges leading to delays due to extensive physical audits of the City’s legacy dark fiber system due to gaps in existing data. These integration challenges lead to recommendation for the optional extension term, additional funding to complete the planned work, and additional contingency funding for any new unforeseen issues that may arise.
To continue progress on work performed, the implementation project was split into two phases, with a first phase in the amount of $49,500 to continue the work with the integration vendor on the legacy data (which is scheduled to be completed by Q1 2025), and a second phase in the amount of $32,500 to migrate the new FTTP pilot data.
Staff recommends amending the 3-GIS contract to add funding for the two phases described above as well as contingency fund for additional services if needed, to provide integration Item 8
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support for the FTTP data. As part of the integration support service, 3-GIS will provide a template to import the FTTP data, assist with mapping the City’s data to the template, provide an exception summary report describing the import results in detail, including any records that could not be included and the reasons for their exclusion. The template could be used for future data set migrations as the City builds out FTTP and fiber backbone in phases. 3-GIS will also migrate the FTTP source data from the City into the 3-GIS data model and system.
FISCAL/RESOURCE IMPACT
Funding for contract amendment number 1 and the requested contingency amount is available in the FY 2025 Fiber-to-the-Premises CIP (FO-24000). Subsequent years are subject to City Council’s approval of the annual budget process and appropriation of funds.
STAKEHOLDER ENGAGEMENT
This has been coordinated with internal stakeholders including Information Technology and Utilities, and in consultation with Magellan/Entrust, the City’s contract consultant in the development of the FTTP project. Through the Utilities Advisory Commission (UAC) and Council, the community has had the opportunity to hear updates on the status of FTTP and provide feedback on the project. The next update on the FTTP project is scheduled with the UAC in May 2025.
ENVIRONMENTAL REVIEW
Approval of this agreement does not meet the definition of a project under the California Environmental Quality Act (CEQA) regulations section 15378 because it is not an activity that will cause a direct physical change in the environment and is a continuing administrative maintenance activity for data management for the FTTP and dark fiber projects.
ATTACHMENTS
Attachment A: Contract with 3-GIS; Contract Number S23184191 APPROVED BY:
Kiely Nose, Interim Utilities Director
Staff: Dave Yuan, Utilities Strategic Business Manager
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Contract Number S23184191 – Fiber Management System (FMS) 3-GIS CONFIDENTIAL - RESTRICTED ACCESS
This document and the confidential information it contains shall be distributed, routed, or made available solely to authorized persons having a need to know within 3-GIS or Customer’s organization, except with written permission of 3-GIS.
3-GIS On-Premise Master License Agreement [v2.7/211011] Page 1 of 24 Licensed Software and Professional Services Master Agreement Customer Number C-2021-01-02181
This Licensed Software and Professional Services Master Agreement (the “Agreement”) dated as of the Effective Date is by and between City of Palo Alto (“Customer”), a California chartered municipal corporation, having an office at 250 Hamilton Ave, 2nd Floor Palo Alto CA, 94302 and 3-GIS, LLC (“3- GIS”), an Alabama limited liability company, having an office at 350 Market Street NE, Suite C, Decatur, AL 35601 (each a “Party” and collectively the “Parties”) WHEREAS, Customer desires to obtain 3-GIS Licensed Software and related professional services and 3- GIS desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. DESCRIPTION OF SOFTWARE LICENSE AND SERVICES AGREEMENT 3-GIS will make available to Customer certain proprietary Licensed Software, including related proprietary Documentation, and Maintenance, in addition to Services, all as specifically described in individual Orders to this Agreement. Each Order will include a description of the Licensed Software and Services to be provided or performed, any associated Deliverables, and the associated fees. Before 3- GIS will provide any Licensed Software or perform any Services, Customer must execute a corresponding Order. 3-GIS and Customer agree to the incorporation of the following attachments and such additional terms are made a part of this Agreement by reference:
1. General Terms and Conditions;
2. Licensed Software License Terms and Conditions - Attachment A;
3. Addendum for Google Street View Tile Access – Attachment B;
4. Base Maintenance Terms and Conditions – Attachment C;
5. 3-GIS Software Support Plan – Attachment D; and
6. API License Terms and Conditions – Attachment E.
II. CUSTOMER AND 3-GIS CONTACTS
City of Palo Alto 3-GIS, LLC
Darren Numoto Dustin Sutton
CIO President
250 Hamilton Ave 350 Market Street NE
2nd Floor Suite C
Palo Alto, CA 94302 Decatur, AL 35601
Tel. No. Tel. No. Tel. No. 256-560-0744
Email Email Email [email protected]
SIGNATURE PAGE FOLLOWS
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In consideration of the mutual obligations assumed under this Agreement, Customer and 3-GIS agree to the terms and conditions set forth in this Agreement and represent that this Agreement has been executed by each Party’s duly authorized representative.
AGREED BY:
CITY OF PALO ALTO, CA
3-GIS, LLC
By: By:
Name:
Name
Title:
Title:
Date:
Date:
APPROVED AS TO FORM:
__________________________
City Attorney or designee
DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Dustin Sutton
President
8/11/2022
8/15/2022
Christine Paras
Asst. Director Administrative Services
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Contract Number S23184191 – Fiber Management System (FMS) 3-GIS CONFIDENTIAL - RESTRICTED ACCESS
This document and the confidential information it contains shall be distributed, routed, or made available solely to authorized persons having a need to know within 3-GIS or Customer’s organization, except with written permission of 3-GIS.
3-GIS On-Premise Master License Agreement [v2.7/211011] Page 1 of 24
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS.
1.1 “3-GIS IP” means 3-GIS or 3-GIS Affiliate developed, created, or prepared Intellectual Property, but does not include Customer Data.
1.2 “Affiliate” of a Party means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the majority ownership of voting securities or by contract.
1.3 “Business Day” means a day other than Saturday, Sunday, or 3-GIS’ company holidays.
1.4 “Business Hours” means 8:00 a.m. to 5:00 p.m. US Central time on Business Days.
1.5 “Change” means any modification to the terms of an Order.
1.6 “Change Order” means any document agreed to by both Parties to effectuate a Change.
1.7 “Confidential Information” means information of a Party to this Agreement which is provided or disclosed to the other and is marked as confidential or proprietary. If the information is initially disclosed orally then it must be designated as confidential or proprietary at the time of the initial disclosure or within twenty (20) days after disclosure, the information must be reduced to writing and marked as confidential or proprietary. No information of the disclosing Party will be considered Confidential Information to the extent the information:
(a) is in the public domain through no fault of the recipient either before or after disclosure; or (b) is in the possession of the recipient prior to the disclosure, or thereafter is independently developed by recipient’s employees or consultants who have had no prior access to the information; or
(c) is rightfully received from a Third Party without breach of any obligation of confidence.
1.8 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer to 3-GIS.
1.9 “Deliverable” means any written summary of results or any other written data, information, Document Deliverable, Software Deliverable, or other tangible materials provided to Customer and identified as a Deliverable in the Order.
1.10 “Document Deliverable” means any written summary of results or any other written data, information, or materials provided to Customer including data, comments, and conclusions pertaining to the Professional Services performed pursuant to the Order.
1.11 “Documentation” means, for a particular Release of the Licensed Software, 3 -GIS’ proprietary materials and written information applicable to such Release, which is generally included with such Release at no additional charge, whether provided as printed material, as a document file, or online. Documentation normally includes, but is not limited to, a user guide and release content letters. For the avoidance of doubt, Documentation does not include any sales or marketing literature or o ther documentation that is not generally delivered with a Release of the Licensed Software. All Documentation shall be provided in English.
1.12 “Effective Date” means the date and time the last of the executing Parties to the Agreement in fact executes the Agreement.
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1.13 “Fixed Price Services” means Services provided for a fixed fee as set forth in the Order.
1.14 “Intellectual Property” means all forms of intellectual property including, but not limited to, patents, trademarks, copyrights, trade secrets, methodologies, logos, techniques, processes, know -how, formulae, algorithms, logic designs, screen displays, schematics, source and object code computer programs or software, documents, mask work rights, design, ideas, product information, invent ions and improvements thereto (whether or not patentable), and all works of authorship fixed in any medium of expression (including any form of online, digital, or electronic medium), whether or not copyrightable and whether registered or not.
1.15 “Licensed Software” means the proprietary software of 3-GIS that is in fact licensed to Customer pursuant to the terms of this Agreement, provided in object code form only, along with any Documentation, all associated files, disk, CD-ROMs, or other media on which the Licensed Software is provided, and any modifications, derivatives, adaptations, or customizations thereof or related thereto, whether or not such modifications, derivatives, adaptations, or customizations are provided pursuant to Support Servic es or otherwise.
1.16 “Malicious Code” means a computer program or piece of code that intentionally corrupts computing systems, software, and/or computer networks, including any so-called “worms” or “viruses”.
1.17 “Named User” means an individual who i s an employee or contractor of Customer authorized by Customer to use Licensed Software installed on the Customer’s system, for whom Customer has obtained a license to the Licensed Software, and who has been supplied a unique Named User identification and password.
1.18 “Non-Production Environment” means the computing environment composed of hardware systems and software applications being used only for the Customer’s internal test, training, and development use.
1.19 “Order” means each documented purchase of any item or service referencing this Agreement and executed by authorized representatives of both Parties.
1.20 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
1.21 “Professional Services” means the work, services, projects, assignments, or tasks 3 -GIS shall perform as specifically set forth in an Order.
1.22 “Service(s)” means Professional Services, and/or Support Services as described in an Order.
1.23 “Software Deliverable” means the instructions for a computer, whether in the form of source code, object code, executable code, firmware, or otherwise and whether tangible or intangible, that is provided to Customer as a result of the performance of the Pr ofessional Services. For the avoidance of doubt, neither 3-GIS licensed software products nor the Licensed Software are Software Deliverables.
1.24 “Specification” means the technical and functional requirements for a Service or Deliverable as included in an Order or as otherwise agreed to in writing by the Parties.
1.25 “Third Party” means any Person not a signatory to this Agreement.
1.26 “Third Party Software” means any software that is not 3-GIS IP.
1.27 “Time and Materials Services” means 3-GIS will perform the Professional Services set forth in an Order on a per unit of time basis until the project is either completed or the authorized time is exhausted, whichever comes first.
2. EFFECTIVE DATE. This Agreement is effective on the date thi s Agreement is signed by both parties (“Effective Date”) and is valid for three (3) years with an option to renew for an additional two (2) years with City Council approval or until the expiration or termination of the Agreement.
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3. FEES AND EXPENSES. Customer shall pay 3-GIS (a) License Fees, (b) Maintenance Fees, (c) Support Services Fees, and/or (d) fees for all other Services as applicable in the amounts stated in an Order. The fees for Services may be either a fixed price fee or a time and materials fee based upon the actual time worked and the applicable fee schedule, as indicated in an Order. Customer shall also reimburse 3-GIS for all reasonable expenses incurred in connection with the provision of the Licensed Software or Services, including tra vel, lodging, meals, and telephone costs. Actual travel time will be charged for services requiring more than three (3) hours of travel each way. 3- GIS reserves the right to limit Services to no more than eight (8) hours within a 24-hour period.
4. BILLING. For license fees and for Fixed Price Services, 3 -GIS shall submit invoices to Customer according to the invoicing schedule set forth in the applicable Order or, if no invoicing schedule is provided, upon delivery of the Licensed Software or initiation of the Fixed Price Service. For reimbursable expenses and Services provided under a time -and-materials fee, 3-GIS shall submit monthly invoices to Customer, and Customer shall pay 3-GIS for Services rendered and expenses incurred as set forth on such invoice.
5. PAYMENTS. Payments to 3-GIS must be in United States dollars and paid utilizing one of the following two methods:
ACH:
Beneficiary Bank:
PNC Bank, N.A.
249 Fifth Avenue
Pittsburgh, PA 15222
Beneficiary Bank Account Name: 3-GIS LLC
Beneficiary Bank Account Number: 3120135878
Routing/ABA Number: 083000108
Beneficiary: 3-GIS, LLC
350 Market St, NE Suite C
Decatur, AL 35601
Please send an email to: [email protected] immediately following transfer.
OR
Mail a check to:
3-GIS, LLC
Attention: Accounting Officer
350 Market St NE; Suite C
Decatur, AL 35601
Customer shall pay invoiced amounts within thirty (30) days of the date on the invoice. 3-GIS reserves the right to require Customer to secure an irrevocable, standby letter of credit from a bank acceptable to 3-GIS to support payments to 3-GIS for any order placed pursuant to this Agreement at Customer’s sole cost and expense. The letter of credit shall be in an amount as determined by 3-GIS and may not expire prior to one hundred twenty (120) days from its issuance.
6. OVERDUE PAYMENTS. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (i) 3 -GIS may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the maximum rate permitted under applicable law; and (ii) if such failure continues for ten (10) or more days following any notice that a payment is overdue, 3-GIS may suspend performance of any service ordered pursuant to this Agreement, including returning any on -site personnel to their usual work locations, until all past due amounts and interest thereon have been paid. The costs and expenses of any ramp -down and any subsequent re -start occasioned by this clause (including travel expenses) shall be fully borne by Customer. 3- GIS shall incur no liability to Customer or any Person as a result of a suspension occasioned by this clause.
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7. TAXES. Fees payable under this Agreement are exclusive of taxes. Customer shall pay or reimburse 3- GIS for all transactional taxes (“Transactional Taxes”), including but not limited to value added, income, withholding, sales, or use taxes, customs or import duties, or other transactional assessments or levies imposed by any authority, government or government agency in connection with this Agreement, but excluding any taxes imposed on the net income of 3- GIS. If 3 -GIS, its subcontractors, and/or their respective employees are required to pay any Transactional Taxes in connection with this Agreement, the fees under this Agreement shall be correspondingly increased. If, after the effective date of this Agreement, there are changes or developments which may result in an increase in any Transactional Taxes, and/or any new Transactional Taxes are levied upon the transactions contemplated by this Agreement, or if the methods of administering or the rates of any such Transactional Taxes are changed, and such new taxes or modified Transactional Taxes result in an increased potential transactional tax liability for 3- GIS, its subcontractors, and/or their respective employees under this Agreement, the fees under this Agreement shall be correspondingly increased. If Customer fails to pay any fees under this Agreem ent, or any associated taxes, duties, levies or assessments, Customer shall pay all reasonable expenses incurred by 3 - GIS, in collecting these sums, including reasonable attorney’s fees, interest and penalties. Customer shall provide to 3-GIS a summary of all amounts withheld during the year no later than thirty (30) Business Days after December 31 of each year, addressed to:
3-GIS, LLC
Attention: Accounting Officer, 3-GIS
350 Market St NE; Suite C
Decatur, AL 35601
8. CONFIDENTIALITY/NON-DISCLOSURE
8.1 Use of Confidential Information. Confidential Information disclosed by either Party to the other in connection with the Agreement will be used by the recipient Party only for the performance of this Agreement.
8.2 Disclosure of Confidential Information. Confidential Information disclosed under this Agreement by one Party to the other will be protected by the recipient from further disclosure, publication, and dissemination to the same degree and using the same care and discretion as the recipient applies to protect its own confidential or proprietary information from undesired disclosure, publication and dissemination.
Except as set forth in the following paragraph, neither Party will disclose the other’s Confidential Information to any Third Party, other than an Affiliate, without prior written consent from the other Party.
If Confidential Information is required by law, regulation, or court order to be disclosed, the recipient must first notify the disclosing Party and permit the disclosing Party to seek an appropriate protective order. The Parties acknowledge Customer is a local agency subject to the requirements of the California Public Records Act.
8.3 Disclosure to Employees and Consultants. Confidential Information disclosed under this Agreement may be disclosed to a receiving Party’s employees (including contract employees) or consultants who participate in the Services if the employees and consultants have been made aware of their responsibilities under this Agreement and the consultants (including contract employees) have signed a statement agreeing to be bound by the terms of this Agreement with respect to confidentiality.
8.4 Misuse of Confidential Information. Either Party’s failure to fulfill the obligations and conditions with respect to any use, disclosure, publication, release, or dissemination of the other Party’s Confidential Information in violation of the terms of this Article entitled “Confidentiality/Non-Disclosure” constitutes a material breach of this Agreement. In that event the aggrieved Party may, at its option and in addition to any other remedies that it may have, terminate this Agreement, its obligations and any rights or licenses granted upon thirty (30) days written n otice to the other Party. In addition to any other remedies it may have, the aggrieved Party has the right to demand the immediate return of all copies of Confidential Information provided to the other Party under this Agreement. The Parties recognize th at disclosure of DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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Confidential Information in violation of this Agreement will result in irreparable harm. Each Party shall have the right to injunctive relief in the event of a disclosure in violation of this Agreement.
9. ASSIGNMENT. Neither this Agreem ent nor any license, right, or obligation granted under this Agreement shall be assignable or transferable (through insolvency proceedings, by mergers, by operation of law, by purchase or otherwise) by Customer without the prior written consent of 3- GIS. No purported assignment or transfer of this Agreement or of any license, right, or obligation granted under this Agreement shall be effective without such written consent, which shall not be unreasonably withheld.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL 3 -GIS BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, LOST PROFITS, LOSS
OF USE OR PRODUCTION, LOSS OF REVENUE, LOSS OF DATA, OR CLAIMS OF THIRD PARTIES EVEN IF 3 -GIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCE WILL 3 -GIS’ LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT THAT 3-GIS HAS BEEN PAID BY CUSTOMER WITHIN TWO (2) YEARS
PRIOR TO THE EVENT, ACTION, OR CIRCUMSTANCE GIVING RISE TO THE LIABILITY OR, IF
THERE ARE MULTIPLE EVENTS, ACTIONS, OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY, THE MAXIMUM CUMULATIVE AMOUNT PAID BY C USTOMER TO 3-GIS UNDER THIS AGREEMENT IN ANY CONSECUTIVE PERIOD OF THREE (3) YEARS, EXCLUDING ONLY (1) CLAIMS FOR MISAPPROPRIATION OF EITHER PARTY’S IN TELLECTUAL PROPERTY
RIGHTS OR NON- COMPLIANCE WITH CONFIDENTIALITY AND PRIVACY -RELATED OBLIGATIONS, (2) ENFORCEMENT OF INDEMNIFICATION OBLIGATIONS, OR (3) WILLFUL MISCONDUCT.
11. INDEMNIFICATION BY CUSTOMER. Customer agrees to indemnify, defend, and hold harmless 3- GIS, 3-GIS’ Affiliates, and 3-GIS’ employees and agents from any and all third party liability, claims, and or demands and all costs and expenses, including reasonable attorneys’ fees, in connection therewith, for or arising out of claims or lawsuits brought by third parties against 3-GIS, its Affiliates, its employees and agents based on: (i) Customer’s misuse of the Licensed Software, information or Deliverables provided under this Agreement, and or (ii) the possession or use by 3-GIS of any of the information, specifications, or data furnished to 3- GIS by Customer hereunder, which is claimed to constitute an infringement of a patent, copyright, trade secret, or other intellectual property right of any Third Party.
12. PUBLICITY. Except as expre ssly stated below, neither Party has any right or license to use in advertising, publicity, promotion, marketing, or other similar activity, any name, trade name, trademark, or other designation including any abbreviation, contraction, or simulation of the other without the prior, express, written permission of the other Party.
13. WAIVER. The failure of either Party at any time to enforce any of the provisions of this Agreement or any right under this Agreement, or to exercise any option provided, will in no way be construed to be a waiver of the provisions, rights, or options, or in any way to affect the validity of this Agreement. The failure of either Party to exercise any rights or options under the terms or conditions of this Agreement will not preclude or prejudice the exercising of the same or any other right under this Agreement.
14. FORCE MAJEURE.
14.1 3-GIS shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure o r delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond 3- GIS’ control, including, without limitation, the following force majeure events (“Force Majeure Event(s) ”): (a) acts of God; (b) flood, fire, explosion, earthquake, epidemics, pandemics, or quarantines; (c) war, invasion, hostilities or war-like actions (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, action, or shutdown; (e) laws, actions, embargoes, or blockades in effect after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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(h) strikes, labor stoppages or slowdowns, labor shortages, or other industrial disturbances; and (i) shortage of adequate power, communication, or transportation facilities.
14.2 The impact of a Force Majeure Event on a 3 -GIS supplier or subcontractor shall be considered to be a Force Majeure Event on 3-GIS.
14.3 In case of a Force Majeure Event, 3-GIS’ performance shall be extended by a reasonable period of time corresponding to the delay caused by the Force Majeure Event.
15. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or any license or service provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of Santa Clara, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective ser vice of process for any suit, action, or other proceeding brought in any such court. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded in its entirety, and the Parties expressly agree not to be g overned by the Uniform Computer Information Transactions Act or similar laws. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16. DISPUTE RESOLUTION.
16.1 Resolution Protocol. In the event of any controversy, claim, or dispute between the Parties arising under this Agreement that cannot be settled at the project manager level, the Parties shall first attempt to resolve the dispute at the business unit director level. Upon the written request of any Party (each a “Dispute Notice”), the other Party shall, within five (5) Business Days, designate an authorized representative for the purposes of resolving any dispute. If no authorized representative is designated within five (5) Business Days, the authorized representative shall be the Party’s signatory of this Agreement. If the dispute is not resolved at this level within ten (10) Business Days of the written request, the Parties shall attempt to resolve the dispute at the division president or equivalent level, for an additional period of ten (10) Business Days.
Prior to the initiation of arbitration, all good faith efforts shall be made by the Parties to resolve all disputes on an informal basis.
16.2 Arbitration. To the extent any controversy, claim, or dispute is not resolved through the process outlined in the previous section and remains unresolved, the Parties may agree that all such unre solved controversies, claims, or disputes or the breach of this Agreement, including questions concerning the scope and applicability of this dispute resolution provision, shall be finally settled by arbitration in Palo Alto, California, pursuant to the rules then applying of the American Arbitration Association and the laws of the State of California. Should the Parties agree to arbitration, the decision or award in writing of the arbitrator shall be binding and conclusive on the Parties to this Agreement and may if necessary be enforced by any court having jurisdiction in the same manner as a judgement in such court. The Parties undertake and agree that all arbitral proceedings conducted under this section shall be kept strictly confidential, and all information, documentation, materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings.
16.3 Injunctive Relief. Notwithstanding the foregoing, either Party may, before or during the exercise of the dispute resolution procedures set forth above, apply to a court identified in the section entitled “Governing Law and Jurisdiction” for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of the dispute resolution procedures.
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16.4 Continued Performance. Compliance with this article entitled “Dispute Resolution” shall not relieve either Party from compliance with any other obligation set out in this Agreement. Unless otherwise provided in this Agreement or except where clearly prevented by the issue in dispute, the Parties agree to continue performing their respective obligations under this Agreement during dispute resolution proceedings.
17. COMPLIANCE WITH LAWS. Customer agrees to comply with all applicable laws and is responsible, at its sole cost and expense, for obtaining any and all governmental licenses, permits, authorizations, passes and approvals that may be required in connection with this Agreement.
18. CUSTOMER’S REEXPORT OBLIGATIONS.
18.1 Customer acknowledges that any services, commodities, software, and/or technical data provided under this Agreement shall be subject to the Export Administration Regulations (the “EAR”) administered by the United States Commerce Department, and that any export or reexport thereof must be in compliance with the EAR. Any technology provided by 3-GIS that is controlled for export purposes, may require prior approval by the appropriate U.S. Government agency. Should this technology provided by 3-GIS be export controlled, Customer will be bound by U.S. export statutes and regulations and shall comply with all export control requirements. Customer agrees that it shall not export or reexport, directly or ind irectly, either during the term of this Agreement or after its expiration, any commodities, software and/or technical data (or direct products thereof) provided under this Agreement in any form to any person, entity, or location in violation of the EAR, or to destinations that are otherwise controlled or embargoed under United States law.
18.2 This Agreement is subject to the receipt of any approvals and/or consents required by applicable government agencies and authorities as may be required for the consummation of the transactions contemplated by this Agreement. 3- GIS shall have no liability to Customer for failure to deliver any deliverable or service under this Agreement as a result of the refusal of any governmental agency to issue any necessary approvals and consents for the delivery or performance of any such product, software, Deliverable or Service.
18.3 Customer is responsible for complying with any applicable laws in the jurisdiction(s) where Customer is located and where Customer is using the Licensed Software, including but not limited to data security, privacy, and export and import laws.
19. TERMINATION FOR CAUSE.
3-GIS shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately upon written notice to Customer, if Customer:
(a) is in material or persistent breach of any of its obligations under this Agreement and either the breach is incapable of remedy or Customer has failed to remedy such breach within thirty (30) days after receiving written notice requiring it to remedy such breach; or (b) (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or othe rwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a re ceiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
20. SURVIVAL. The terms and conditions of this Agreement regarding confident iality, payment, warranties, liability, dispute resolution, export laws, the terms of any license grant, as well as any other terms of this Agreement that by their sense and context are intended to survive the execution, delivery, performance, termination, or expiration of this Agreement shall survive and remain in effect after expiration DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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or termination of the Agreement, and shall apply to any permitted successors and assigns. Upon termination of the Agreement, the provisions of the Agreement, including those in the preceding sentence, which by their express terms survive termination, shall remain in full force and effect.
21. SEVERABILITY. If any provision of this Agreement or is void, voidable, unenforceable, or illegal in its terms, but would not be so if it were rewritten to eliminate such terms that were found to be voidable, unenforceable, or illegal and such rewrite would not affect the intent of the provision, then the provision must be rewritten to be enforceable and legal.
22. HEADINGS. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
23. ENGLISH LANGUAGE. Unless otherwise explicitly stated in an Order, 3- GIS shall provide all Services, materials, and Documentation in the English language.
24. ORDER OF PRECEDENCE. The terms of this Agreement shall be considered incorporated into each Order executed pursuant to the terms of this Agreement. In the event of any conflict or inconsistency among documents related to this Agreement, the fol lowing order of precedence shall be used to determine the resolution of the discrepancy, unless both Parties mutually agree in writing to an alternative decision. The order of precedence for between documents shall be as follows, from highest precedence t o lowest precedence:
a) An Order, as amended or modified by a Change Order (however, no Order shall be considered an amendment to this Agreement);
b) Any amendments to this Agreement;
c) Any exhibits or attachments to the Agreement; and
d) The General Terms and Conditions of the Agreement.
25. NOTICES. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that a Party may designate from time to time upon notice to the other Party):
CITY OF PALO ALTO, CA 3-GIS, LLC
Darren Numoto Dustin Sutton
CIO President
250 Hamilton Ave 350 Market Street NE
2nd Floor Suite C
Palo Alto, CA 94302 Decatur, AL 35601
Tel. No. Tel. No. (256) 560-0744
Notices sent in accordance with this Article 25 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when received if sent by certified or registered US Mail, return receipt requested and postage prepaid.
26. INTERPRETATION. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice -versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring constructi on or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
27. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. This Agreement supersedes any and all prior discussions and/or representations, whether written or or al, and no reference to prior dealings may be used to in any way modify the expressed understandings of this Agreement. Any future representations, promises and verbal agreements related to the products, product features, future product enhancements, product functionality, or services covered by this Agreement will be of no force or effect unless reduced in writing and made a part of this Agreement. This Agreement may not be amended or modified unless so done in writing signed by authorized representatives of both Parties. Any and all amendments to this Agreement shall specifically reference the fact the amendment is intended to alter the terms and conditions set forth herein. No Change Order or Specification shall affect the terms and conditions set for th herein. All terms and conditions printed on a Customer’s PO are void, even if issued subsequent to the effective date of this Agreement, and no term or condition printed on a Customer’s PO shall be deemed to constitute a change to this Agreement or impose a term or condition on 3-GIS, its Affiliates, or any other Person.
END OF GENERAL TERMS AND CONDITIONS
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ATTACHMENT A - LICENSED SOFTWARE TERMS AND CONDITIONS The additional terms and conditions set forth in this Attachment A and the General Terms and Conditions of the Agreement shall govern the licensing and use of 3-GIS Licensed Software as described in an Order.
1. DEFINITIONS.
1.1 “Authorization Code(s)” means any key, authorization number, enable ment code, login credential, activation code, token, user name and password, or other mechanism required for use of Esri Offerings.
1.2 “Backup License” means a type of license that is installed in a cold standby environment intended to support a manual s witchover of the Licensed Software product in the event of failure of the Production License environment. Each Backup License requires a corresponding Production License and the duration of the Backup License shall not exceed the term of the applicable Production License.
1.3 “Concurrent License” means a license that permits execution of the Licensed Software on any computer on the network. The number of simultaneous/concurrent users may be controlled by a License Manager to access and use the Software, Data, or Documentation
1.4 “Non-Production License” means a software license type that is installable and useable only in a Non Production Environment.
1.5 “Production License” means the license(s) of the Licensed Software product provided to Customer for general production use as authorized by the Agreement.
1.6 “Release” means a particular, numbered version of the Licensed Software.
1.7 “Documentation” means, for a particular Release of the Licensed Software, 3 -GIS’ proprietary materials and written information applicable to such Release, which is generally included with such Release at no additional charge, whether provided as printed material, as a document file, or online.
2. TITLE TO LICENSED SOFTWARE.
2.1 The Licensed Software and Documentation are licensed, not sold, to Customer by 3-GIS and Customer does not have under or in connection with this Agreement any ownership interest in the Licensed Software or Documentation. Title, copyright, and all other ownership rights to the intellectual proper ty in the Licensed Software and Documentation, including any modifications or customization thereof made hereunder, remains in 3-GIS. Title to Third Party Software remains with the licensor of such Third -Party Software.
3. SYSTEM REQUIREMENTS. The Technical Operating Environment (“TOE”) means the hardware and software that is necessary for the proper operation of the Licensed Software, as stated in the current Documentation. Customer is responsible for licensing, procuring, installing, and maintaining the required TOE.
4. LICENSE GRANT.
4.1 Customer is hereby granted a personal, limited duration, nontransferable, and nonexclusive license to use the Licensed Software solely in conjunction with the license duration and the number of Named Users stated in an Order and solely for Customer’s internal business purposes. Additionally, Customer is granted a concurrent personal, nonexclusive, and nontransferable right to use the Documentation solely for Customer’s internal business purposes only for the license duration set forth in the Order.
5. LICENSE RESTRICTIONS. The Licensed Software and Documentation are subject to the following license restrictions:
(a) Customer may make one (1) archival or backup copy of the Licensed Software only for the license duration set forth in the Order.
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(b) Customer may make copies of the Documentation solely for its internal use only for the license duration set forth in the Order.
(c) Customer shall not remove or obscure any copyright, trademark notice or restrictive legend on the Licensed Software or Documentation. Customer shall reproduce such notices and legends on any copy of the Licensed Software or Documentation which Customer makes pursuant to the terms of this Agreement.
(d) No additional title or rights are transferred or implied, although a licensed right to use is granted. (e) Except as may be explicitly agreed in any contract between 3-GIS and Customer, 3-GIS reserves the right, in any way and without notice, to revise, not revise, update, or modify t he Licensed Software, or the information upon which the Licensed Software was based, and assumes no responsibility for: (i) protecting the Licensed Software against obsolescence, (ii) providing any additional functionality in the Licensed Software, (iii) m aintaining the Licensed Software, or (iv) providing other services with respect to the Licensed Software. (f) Customer shall not: (i) sell, distribute, assign, transfer, lend, or lease the Licensed Software; or (ii) reverse engineer, decompile, or disassem ble the Licensed Software; (iii) use the Licensed Software in any manner that exceeds the usage limits or license duration as stated in an Order; (iv) make the Licensed Software available to anyone other than Named Users; (v) distribute Authorization Codes to any Third Party; (vi) make any attempt to circumvent the technological measure(s) that control access to the Licensed Software; (vii) use the Licensed Software to store or transmit infringing, libelous, tortious, or otherwise unlawful material, or to s tore or transmit material in violation of third -party privacy or intellectual property rights; (viii) unbundle or independently use individual component parts of a bundled Licensed Software solution; (ix) store or transmit Malicious Code; (x) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof; or (xi) access the Licensed Software to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions, interfaces, or graphics, (3) copy any ideas, features, functions, interfaces, or graphics of the Licensed Software or (4) determine whether the Licensed Software is within the scope of any patent.
(g) Licensed Software is subject to usage limits. Unless otherwise explicitly stated in an Order: (i) a quantity in an Order refers to Named Users, and the Licensed Software may not be accessed by more than that number of Named Users, (ii) a Named User’s user name, password, or any other Named User login credential may not be shared with any other individual, (iii) except as set forth in an Order, a Named User identification may only be reassigned to a new individual replacing one who will no longer use the Licensed Software, and (iv) Customer may not add a Third Party as Named User, other than a Third Party included within the definition of Named Users and subject to the terms of use applicable to the Licensed Software. If Customer exceeds a contractual usage limit, 3-GIS may work with Customer to seek to reduce Customer usage so that it conforms to that limit. If, notwithstanding 3-GIS efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute a Change Order for additional quantities of the applicable Licensed Software promptly upon 3-GIS delivery of the same.
6. INDEMNIFICATION BY 3-GIS.
6.1 3-GIS shall defend so much of any Third-Party claim, action, or suit brought against Customer to the extent that such claim, action or suit alleges that the Licensed Softwar e, or the use or possession of the Licensed Software, infringes or violates any existing United States patent or United States copyright. 3 - GIS shall pay, indemnify, and hold Customer harmless (up to the total of the license fees received by 3- GIS under this License Agreement) from and against any and all settlements agreed to by 3 -GIS or final judgments which are attributable to such claims, including costs, damages and reasonable attorney’s fees DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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as finally awarded or agreed to in such settlements, provided, however, Customer notifies 3-GIS promptly, in writing, of such claim and grants 3-GIS sole control of the defense and all negotiations for settlement or compromise of such claim.
6.2 In the event an injunction is obtained against Customer’s use of the Licensed Software, or, in 3-GIS’ opinion, it appears likely that such an injunction will be obtained, 3- GIS shall, at its option: (i) secure Customer’s right to continue using such Licensed Software, (ii) replace or modify such Licensed Software to make it noninfringing, without altering its capabilities and functioning in the computer in which it was installed, or, if neither option (i) nor (ii) is commercially reasonable, then (iii) terminate/cancel Customer’s licenses and rights and refund Customer an amount representing the value of the unused portion of the license for the Licensed Software. The value of such unused portion of the license shall be a pro rata portion of the license fees actually paid by Customer to 3- GIS under this License Agreement and shall be determined by depreciating such fees over five years beginning with the initial delivery of the Licensed Software. Such license fees shall not include any fees for services or Maintenance.
6.3 The defense, indemnification, and other obligations of 3 -GIS pursuant to this Article entitled “Indemnification By 3-GIS” do not apply to the extent that: (i) Customer modifies the Licensed Software and such modification causes such infringement; (ii) Customer uses the Licensed Software in a manner not permitted or contemplated under this Agreement and such use causes the alleged infringement; (iii) Customer is violating the license terms applicable to the Licensed Software; or (iv) the alleged infringement arises from events or circumstances outside of 3 -GIS’ commercially reasonable control (including any third-party hardware, data, or software).
6.4 3-GIS shall have no liability of any kind to Customer with respect to intellectual property infringement in connection with Third Party software or intellec tual property provided to Customer pursuant to this Agreement.
6.5 This article entitled “Indemnification By 3 -GIS” sets forth 3 -GIS’ entire liability with respect to intellectual property infringement.
7. LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES
7.1 Licensed Software Warranties.
7.1.1 3-GIS warrants that the first instance of a Licensed Software product delivered to Customer will operate in substantial conformance with the Documentation for ninety (90) days after delivery or installation by 3-GIS. If a breach of the foregoing warranty occurs, Customer’s sole and exclusive remedy shall be, at 3-GIS’ option, (a) replacement of the nonconforming Licensed Software within a commercially reasonable time, or (b) treatment of the Defect in accordance wi th the procedures set forth in Attachment C, provided Customer notifies 3-GIS in writing of the non-conformance within ninety (90) days of the date of shipment. The foregoing warranty is void if the Licensed Software has been modified by other than 3- GIS or its Affiliates and such modification causes or contributes to the nonconformance.
7.1.2 3-GIS warrants that the media for the Licensed Software as delivered to Customer is free from defects in materials and workmanship. If a breach of the foregoing warranty occurs, Customer’s sole and exclusive remedy and 3-GIS’ sole and exclusive obligation will be to replace the media for the Licensed Software within a commercially reasonable time and without charge to Customer, provided Customer notifies 3-GIS in writing of the defect in the media within thirty (30) days of the date of shipment.
7.2 Third Party Software. THIRD PARTY SOFTWARE, INCLUDING, BUT NOT LIMITED TO, OPEN SOURCE SOFTWARE, IS PROVIDED ON AN “AS IS” BASIS.
8. DISCLAIMER OF WARRANTIE S. THE FOREGOING WARRANTIES AND, IF APPLICABLE,
THE SERVICES WARRANTY SET FORTH IN ATTACHMENT D BELOW, ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. ALL OTHER CONDITIONS, WARRANTIES, OR
OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE IMPLIED OR DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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INCORPORATED INTO THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER BY
STATUTE, COMMON LAW, OR OTHERWISE, ARE HEREBY EXCLUDED, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF 3-GIS HAS BEEN AWARE OF SUCH PURPOSE, AND, THE
WARRANTY AGAINST INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
9. TERMINATION/CANCELLATION.
9.1 If either Party defaults in any material obligation in this Agreement ("Default"), including Licensee's failure to pay non- disputed fees, the non- defaulting Party shall give written notice of such default. If the Party in default has not cured the default to the reasonable satisfaction of the non -defaulting Party within thirty (30) days of receipt of the notice (or such other time agreed to in writing by the Parties), the non- defaulting Party may terminate this Agreement.
9.2 Upon termination/cancellation of the license and rights granted hereunder, Customer shall cease using the Licensed Software and destroy or return all Licensed Software furnished hereunder, including any copies, and certify such destruction or return in writing to 3- GIS. Such termination/cancellation shall not affect any obligations of Customer incurred prior to such termination/cancellation, nor shall 3- GIS have any obligation to refund any monies paid to it hereunder. The termination/cancellation rights of 3- GIS provided herein are in a ddition to all other rights and remedies available to 3- GIS. Upon any such termination/cancellation, any 3-GIS obligation hereunder shall terminate/cancel automatically.
9.3 Termination Services. Notwithstanding the preceding paragraph, upon the terminat ion of this Agreement for any reason, 3- GIS may provide to Customer, at 3- GIS's standard professional rates, reasonable termination assistance as may be requested by Customer. If Customer elects to engage a third- party to provide related or substitute services or software after termination if this Agreement, then Customer shall include in its contract with such third party that such third party shall execute a confidentiality agreement reasonably acceptable to 3-GIS to protect 3-GIS's proprietary and confidential information.
10. THIRD PARTY BENEFICIARY. Owners of any Third -Party Software embedded into the Licensed Software or bundled with a Licensed Software solution are third party beneficiaries of this Agreement.
11. THIRD PARTY COMPONENTS. In the even t the Oracle JDBC Driver is included in the Licensed Software solution, Customer shall not redistribute the Oracle JDBC Driver or its documentation.
END OF SOFTWARE LICENSING TERMS AND CONDITIONS
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ATTACHMENT B - ADDENDUM FOR GOOGLE STREET VIEW TILE ACCESS Only in the event that Customer orders Google Street View licensed tile access as indicated in an Order, the following additional terms and conditions apply to Customer’s Licensed Tile Access (as such term is defined below).
1. LICENSE GRANT.
1.1 In accordance with the Customer’s order as set forth in an Order, and upon payment of the associated fee set forth in an Order, Customer is hereby granted a personal, limited duration, nontransferable, and nonexclusive license to access Google Street View Tiles exclusively through the 3- GIS Web application (“Licensed Tile Access”).
2. DURATION OF THE LICENSE. The fixed duration of the Licensed Tile Access runs concurrently with the fixed license duration of for Google Street View Tiles as set forth in the applicable Order.
3. TITLE. Title to the Google Maps Tile API Service and the Google Street View Tiles remains at all times with Google.
4. SPECIAL TERMS AND CONDITIONS. Notwithstanding anything in the Agreement to the contrary:
4.1 The following terms and conditions applicable to Licensed Tile Access, Google Maps, Google Street View, and Google Earth (each a “Google Service” and collectively the “Google Services”) are incorporated by reference as if they were fully set out herein, and are listed in o rder of precedence if there is a conflict between such terms:
(i) the Google Services’ Acceptable Use Policy at https://cloud.google.com/maps- platform/terms/other/universal-aup/;
(ii) the Google Services’ Legal Notices at https://maps.google.com/help/legalnotices_maps/; and (iii) the Google Services’ Additional Terms of Service at https://maps.google.com/help/terms_maps.html.
Customer shall use the Google Services in a manner that is consistent with these above- referenced terms and conditions and shall compel all of its users to do the same.
4.2 Use of Licensed Tile Access shall be limited strictly to obtaining access of Google Services through the 3-GIS Web application.
4.3 The base fee for the Licensed Tile Access is set forth in an Order.
Google and Street View are the registered trademarks of Google LLC. ©2018 Google LLC All rights reserved.
END OF ADDENDUM FOR GOOGLE STREET VIEW TILE ACCESS
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ATTACHMENT C – BASE MAINTENANCE TERMS AND CONDITIONS
The following are 3-GIS’ additional terms and conditions for Base Maintenance. Customer purchases the Base Maintenance defined herein for the fee specified in an Order. Base Maintenance is defined as and limited to the following services: (1) correction of material Defects in accordance with this At tachment C and (2) providing Base Maintenance Releases. Under Base Maintenance, and strictly with regard to the Licensed Software, Customer is entitled to the services set forth hereunder.
1. DEFINITIONS
1.1 “Acknowledgment” or “Acknowledge” means a response to Customer by an employee of 3- GIS that he or she is gathering Problem Determination information in response to a Problem reported by Customer.
1.2 “Base Maintenance Period” means a period beginning at the conclusion of the Warranty Period or the conclusion of the previous Base Maintenance Period for Base Maintenance renewals and continuing for the period set forth in an Order of this Agreement or, if no period is set forth, for one calendar year.
1.3 “Base Maintenance Releases” means new or supplemen tal releases of the Licensed Software that are provided at no additional charge to purchasers of Base Maintenance and which include only limited additional functionality and/or contain corrections to the License Software provided as part of Base Maintenance. Base Maintenance Releases are not Enhancement Releases. 3-GIS and its licensors have sole discretion in determining whether a Release is an Enhancement Release or a Base Maintenance Release and the schedule for and content of any such release.
1.4 “Defect” means a condition in the Licensed Software that causes the Licensed Software to substantially fail to conform to Documentation in effect on the date of delivery of the Licensed Software. An error in the Documentation is not a Defect of the License Software. If the Documentation is determined to be in error, it will be corrected and provided to the Customer.
1.5 “Documentation” shall have the meaning set forth in Attachment A, “Licensed Software Terms and Conditions.”
1.6 “Enhancement Release” means a release of the Licensed Software that includes new features or functionality beyond that provided in the release of the 3-GIS Licensed Software product initially delivered to Customer pursuant to an Order. 3- GIS and its licensors have sole discretion in determining whether a release is an Enhancement Release or a Base Maintenance Release. Enhancement Releases and maintenance for such Enhancement Releases are not included in Base Maintenance but may be licensed separately for an additional fee.
1.7 “Problem” means a condition reported by Customer to 3 -GIS or identified by 3- GIS in which the Licensed Software appears to not be functioning in substantial conformance with the Documentation.
1.8 “Problem Determination” means 3-GIS’ isolation of a Problem as either (a) a Defect or (b) a problem of another nature which has adversely affected the performance of the Licensed Software, (e.g., operational errors, database, hardware, or firmware issues, interfacing products, Third Party Software, etc.).
1.9 “Severity 1 Problem” means the Licensed Software is completely inoperable.
1.10 “Severity 2 Problem” means the Licensed Software is usable, but an essential component of the Licensed Software is inoperable or malfunctioning.
1.11 “Severity 3 Problem” means the Lice nsed Software is usable, but a nonessential component is inoperable or malfunctioning.
2. PROBLEM REPORTING INFORMATION.
2.1 Reporting Information. Customer is responsible for reporting all Problems through JIRA (support ticket system) and providing the following information in the Problem report:
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a) Reporter’s name, location, and company;
b) call-back telephone number (with voicemail, if available); c) Licensed Software name and release level;
d) processor location and type;
e) nature of the situation;
f) assessment of Severity level as described above;
g) description/history of the Problem and Customer’s efforts to resolve it (if any); h) Software access and diagnostic reports (if applicable); and i) any other information reasonably required by 3-GIS to diagnose the Problem.
2.2 Problem Identification. Prior to reporting Customer shall:
a) identify the Problem and the part(s) of the Licensed Software believed to be the source of the Problem b) determine that all known corrections or workarounds provided through Customer Services Bulletins or contained in prior Base Maintenance Releases which pertain to the Problem have been applied; and c) collect necessary and available supporting documentation for use by 3-GIS in diagnosing the Problem.
2.3 Problem Diagnosis Coordination. If Customer reports a Problem, Customer will be responsible for providing necessary materials (e.g., remote dial-in access, database access, printouts) required by 3-GIS to diagnose the Problem in an efficient manner.
2.4 Acknowledgement of Severity Level. 3-GIS will respond to the Customer to Acknowledge the severity level of the Problem within the time frames set forth below. After investigation, 3 -GIS may change the severity level for that Problem. After Acknowledgement, 3-GIS will make a Problem Determination. If 3- GIS determines that the Problem is not a Defect, 3 -GIS will inform Customer that the Problem is outside the scope of Base Maintenance. 3 -GIS will then inform Customer that any further services re lated to the Problem, if offered and provided by 3- GIS, shall be charged at 3- GIS’ then current rates for time and materials services.
2.5 Severity 1 Problem
(i) 3-GIS will Acknowledge a Severity 1 Problem within one (1) Business Day, on average. (ii) If 3-GIS makes a Problem Determination that the Severity 1 Problem is due to a Defect, 3-GIS will use commercially reasonable efforts to electronically or telephonically provide or communicate a correction or workaround for the Defect within 3 Business Days, on average, of such Problem Determination. Customer must have knowledgeable staff available to aid in the investigation and must apply the Licensed Software correction or workaround as soon as it is provided by 3-GIS.
2.6 Severity 2 Problem
(i) 3-GIS will Acknowledge this level Problem within two (2) Business Days on average. (ii) If 3-GIS makes a Problem Determination that the Severity 2 Problem is due to a Defect, 3-GIS will use commercially reasonable efforts to electronically provide a correction or workaround for the Defect within 10 Business Days, on average, of such Problem Determination or provide Customer with written notice within that time that the effort will require further research, resources, or analysis. Customer must have knowledgeable staff available to aid in the investigation and must apply an agreed upon Licensed Software correction or workaround as soon as it is provided by 3-GIS.
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2.7 Severity 3 Problem
(i) 3-GIS will Acknowledge this level Problem within three (3) Business Days on average. (ii) If 3 -GIS makes a Problem Determination that the Severity 3 Problem is due to a Defect, 3 -GIS will evaluate the Defect for possible inclusion of a correction or workaround in a future Base Maintenance Release.
2.8 All Base Maintenance-related communications will be conducted in English.
3. THIRD PARTY SOFTWARE MAINTENANCE
In the event that 3-GIS determines that a Problem is caused by Third Party Software bundled or embedded in the Licensed Software, as Customer’s sole and exclusive remedy 3-GIS will report such Problem to the licensor of such Third Party Software and supply Customer with any corrections or workarounds that such licensor provides to 3-GIS. Notwithstanding anything else in this Agreement, if a licensor of 3- GIS does not provide support to 3- GIS for the Third-Party Software for any reason, 3- GIS shall have the option to terminate Base Maintenance. In such event, 3-GIS shall refund Customer an amount representing the value of the unused portion of the Base Maint enance. Such value shall be a pro rata portion of the Base Maintenance fees actually paid by Customer to 3 -GIS under this Base Maintenance Agreement and shall be determined by depreciating such fees on a monthly basis over the Base Maintenance Period.
4. INSTALLATION AND SUPPORT OF BASE MAINTENANCE RELEASES.
Customer is responsible for installing all Base Maintenance Releases within three (3) months of the issuance date of such release of the Licensed Software. 3-GIS will discontinue support for prior Base Maintenance Releases three (3) months after the issuance date of the current Base Maintenance Release.
5. MODIFICATION OF LICENSED SOFTWARE.
If Customer modifies the Licensed Software outside the prescribed methods outlined in the Documentation, 3-GIS will not continue to provide Base Maintenance for the Licensed Software.
END OF BASE MAINTENANCE TERMS AND CONDITIONS
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ATTACHMENT D – 3-GIS SOFTWARE SUPPORT PLAN
The additional terms and conditions set forth in this Attachment E, together with Attachment D, and the General Terms and Conditions of the Agreement shall govern the provision of the 3-GIS Software Support Plan Services (“Support Services”) as described h erein. 3- GIS will provide Support Services up to the number of contracted hours in support of Customer’s 3- GIS software solution for the one-year period commencing as set out in the applicable Order (the “Support Services Commencement Date”). Capitalized terms not otherwise defined in this Attachment shall have the meaning assigned to them elsewhere in the Agreement.
1. SUPPORT SERVICES
1.1 3-GIS’ Call Center can be reached directly at +1 256- 560-0744 and is available during Business Hours. All Call Center communications will be conducted in English.
1.2 Customer may choose to use the hours provided for Support Services to seek 3 -GIS’ assistance with upgrades on major releases. Such assistance shall be comprised of 3 -GIS consultation services covering the following topics:
● Backups of data and 3-GIS products
● Uninstall of existing products
● Install of new products
● Configuration changes needed to support the version
● Data schema changes needed to support the version
● Republishing and applying of the Sever Object Extension file ● Base Testing after upgrade
1.3 Customer may also use Support Services for a wide range of additional tasks that will assist in its administration of a 3-GIS software solution. 3-GIS will not complete these tasks for the Customer but will provide a supportive level of assistance to the Customer associated with the types of requests in Table 1, below.
2. EXCLUSIONS
2.1 The following services are not included as part of Support Services:
● Investigation of network issues
● Certificate changes or investigation
● Operating systems
● Esri upgrades, licensing, service packs, or installs
● Database maintenance, troubleshooting, and administration tasks ● Data scrubbing, clean-up, or correction
● Integration with other systems or software
● System configuration changes not essential for an upgrade ● Unsupported or undocumented system configuration changes ● Data Conversion work outside of Drag and Drop tool
● Esri tools not incorporated into 3-GIS’ software
● User and access changes
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● Jasper reports
● Automated design support or requests
3. A DDITIONAL TERMS
3.1 Support Services are provided on an annual basis commencing with the Support Services Commencement Date.
3.2 Unused support hours at the end of the annual term shall be deemed consumed at the end of the annual term and no credit or refund shall be provided.
3.3 Support Services will automatically renew for annual terms on the anniversary of the Support Services Commencement Date unless Customer provides written notice to cancel the ren ewal in advance of the effective renewal date.
TABLE 1 - 3-GIS SOFTWARE SUPPORT PLAN MATRIX
Support Plan Tier Level 1 Level 2 Level 3
Billing Frequency Annual Annual Annual
Maximum Annual Support Hours 20 60 120
Fee for Additional One Hour Blocks of
Support Services $175 $150 $150
Software Upgrade Assistance of Up To 8
Hours 0 1 2
Access to the 3-GIS Support Hotline Yes Yes Yes
Limited 3-GIS-related Esri functionality
support (includes: Add Features; MXD
changes/Publish; Server Configuration)
Yes Yes Yes
END OF 3-GIS SOFTWARE SUPPORT PLAN
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ATTACHMENT E - API LICENSE TERMS AND CONDITIONS
This API License Attachment (“Attachment”) to that certain Licensed Software and Professional Services Master Agreement sets forth the additional terms and conditions which, along with the terms and conditions set forth in the Agreement, shall govern the licensing and use of the 3-GIS API.
1. Definitions.
(a) “API” means the application programming interface and any API Documentation or other API materials made available to Customer by 3-GIS. (b) “API Documentation” means the API documentation made available to Customer by 3-GIS from time to time.
(c) “API Key” means the security key 3-GIS makes available for Customer to access the API.
(d) “3-GIS Products” means the Licensed Software as such term is defined in the Agreement.
(e) “Customer Applications” means any software, firmware, or hardware Customer causes to interact with the API.
2. License Grant. Subject to and conditioned on its compliance with all terms and conditions set forth in this Attachment, 3 -GIS hereby grants Customer a limited, revocable, non- exclusive, non- transferable, non-sublicensable license during the term and for the usage tier set forth in the applicable API Order to: (a) use the API solely for its internal business purposes solely in conjunction with the 3- GIS Products. Customer acknowledges that there are no implied licenses granted under this Attachment. 3-GIS reserves all rights that are not expressly granted. Customer may not use the API for any other purpose without its prior written consent. Customer must obtain an API Key from 3-GIS’ support team. Customer may not share its API Key with any third party, must keep its API Key and all log- in information secure, and must use the API Key as its sole means of accessing the API.
3. U
se Restrictions. In addition to all usage restrictions set forth in the Agreement, except as expressly authorized under this Attachment, Customer may not:
(a) copy, modify, or create derivative works of the API, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the API;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the API, in whole or in part; (d) remove any proprietary notices from the API or API Key; or (e) use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Customer will comply with all terms and conditions of this Attachment, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be included in the Documentation from time to time.
4. Customer Applications. Custom er agrees to monitor the use of the API for any activity that violates applicable laws, rules, and regulations or any terms and conditions of this Attachment or the Agreement. As between Customer and 3-GIS, Customer is responsible for all acts and omissions of its end users in connection with Customer Application and their use of the API, if any. Customer agrees that DocuSign Envelope ID: 0C82F98A-6C52-4AAC-8111-48AAEA5F08A4 Item 8
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Customer is solely responsible for posting any privacy notices and obtaining any consents from its end users required under applicable laws, rules, and regulations for their use of Customer Applications.
5. No Support Services; Updates. This Attachment does not entitle Customer to any Support Services for the API. Customer acknowledge that 3-GIS may update or modify the API from time to time and at its sole discretion (in each instance, an “Update”), and may require Customer to obtain and use the most recent version of the API. Updates may adversely affect how Customer Applications communicate with the 3 -GIS Products. Customer is required to make any changes to Customer Applications that are required for integration as a result of such Update at its sole cost and expense. Customer continued use of the API following an Update constitutes binding acceptance of the Update.
6. I
ntellectual Proper ty Ownership; Feedback. Customer acknowledges that 3-GIS and/or its licensors own all right, title, and interest, including all intellectual property rights, in and to the API and the 3-GIS. Customer will use commercially reasonable efforts to safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Customer will promptly notify 3-GIS if Customer becomes aware of any infringement of any intellectual property rights in the API. If Custom er or any of its employees, contractors, and agents sends or transmits any communications or materials to 3-GIS by mail, email, telephone, trouble ticket, or otherwise, suggesting or recommending changes to the API and/or the 3 -GIS Products, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), all such Feedback is and will be treated as non- confidential. Customer hereby assign to 3- GIS on its behalf, and on behalf of its employees, contractors, and agents, all right, title, and interest in, and 3- GIS is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although 3-GIS is not required to use any Feedback.
7. D
isclaimer of Warranties. Notwithstanding anything in the Agreement or this Attachment to the contrary, THE API IS PROVIDED “AS IS” AND 3 -GIS SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. 3 -GIS
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON -INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 3 -GIS MAKES NO
WARRANTY OF ANY KIND THAT THE API, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE
WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK
WITH ANY CUSTOMER APPLICATIONS, SYSTEM, OR OTHER SERVICES, OR ANY THIRD PARTY’S SOFTWARE, HARDWARE, FIRMWARE, SYSTEM, OR OTHER SERVICES, OR BE
SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR -FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
8. I
ndemnification. Customer agrees to indemnify, defend, and hold harmless 3- GIS and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) its (or its officers, directors, employees, agents, affiliates) use or misuse of the API, (b) its breach of this Attachment, and (c) Customer Applications. In the event 3- GIS seek indemnification or defense from Customer under this provision, 3- GIS will promptly notify Customer in writing of the claim(s) brought against 3-GIS for which 3-GIS seek indemnification or defense. 3-GIS reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of its choice.
Customer may not enter into any third -party agreement that would, in any manner whatsoever, constitute an admission of fault by 3-GIS or bind 3-GIS in any manner, without its prior written consent. In the event 3-GIS assume control of the defense of such claim, 3-GIS will not settle any such claim requiring payment from Customer without its prior written approval.
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9. Limitations of Liability . SOLELY AS IT RELATES TO OR ARISES OUT OF THE
GRANT OF API USAGE RIGHTS UNDER THIS ADDENDUM, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL 3 -GIS, ITS SUCCESSORS, OR
ASSIGNS, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY UNDER ANY TORT,
CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (a) ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR
MALFUNCTION, INTERRUPTION OF BUSINESS, OR ANY OTHER SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE API; OR (b) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF FIVE HUNDRED DOLLARS EVEN IF 3-GIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR 3-GIS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. T
erm and Termination . The term of this Attachment commences when Customer executes the applicable Order for the API and will continue in effect until terminated as set forth in this Section or upon the expiration of the limited duration for API usage granted in the applicable Order for the API.
Customer’s right to use the API will terminate immediately and automatically if Customer violates any of the terms and conditions of this Attachment. Upon termination of this Attachment for any reason, all licenses and rights granted to Customer under this Attachment will also terminate and Customer must cease using, destroy, and permanently erase from all devices and systems Customer directly or indirectly control all copies of the API. Any terms that by their nature are intended to continue beyond the termination or expiration of this Attachment will survive termination. Termination will not limit any of 3-GIS’s rights or remedies at law or in equity.
11. E xport Regulation. In addition to the export obligations set forth in the Agreement, Customer will not make the API accessible from or to any jurisdiction or country to which export, re-export, or release is prohibited by applicable law, rule, or regulation.
END OF API LICENSE TERMS AND CONDITIONS
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City Council
Staff Report
From: City Manager
Report Type: CONSENT CALENDAR
Lead Department: Public Works
Meeting Date: April 7, 2025
Report #:2502-4177
TITLE
Approval of Contract Amendment No. 2 to Contract Number C21181509 with SCS Field Services in the amount of $46,203 for a New Not-to Exceed Amount of $417,012, and to Extend the Contract Through October 10, 2025, to Provide Continuous Gas Monitoring and Reporting Services for the City’s Closed Landfill; CEQA Status - Exempt Under CEQA Guidelines Section 15301
RECOMMENDATION
Staff recommends that Council approve and authorize the City Manager or their designee to execute Contract Amendment No. 2 to Contract C21181509 with SCS Field Services, to increase compensation by $46,203 and extend the contract term an additional six months through October 10, 2025. The revised total contract amount is not-to-exceed $417,012, including $372,151 for basic services and $44,861 for additional services.
BACKGROUND
The City owns and operates a closed, class III municipal solid waste disposal site (landfill), located at 2380 Embarcadero Road in Palo Alto, California. The landfill reached refuse capacity and ceased accepting waste in 2011, underwent final capping and regulatory closure in 2015, and is now known as Byxbee Park. The landfill is currently in its “post-closure” maintenance and monitoring period, under regulatory oversight by CalRecycle, the Regional Water Quality Control Board, the Bay Area Air Quality Management District (BAAQMD), and Santa Clara County Department of Environmental Health.
State and federal regulations require that landfill operators provide effective environmental control and monitoring systems to prevent the buildup and release of landfill gas from the buried waste. The landfill’s gas extraction system consists of buried underground piping, 91 vertical extraction wells, and a flare/blower system that keeps the wellfield under vacuum.
Specific landfill gas control activities are listed in the Bay Area Air Quality Management District’s (BAAQMD’s) Regulation 8, Rule 34, and include well-head monitoring, surface emissions Item 9
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monitoring, maintaining detailed operating records, continuous flow and temperature monitoring and recording at the flare/blower station, and source testing.1 The environmental control systems monitoring and reporting tasks are required after the landfill closure for as long as the landfill continues producing methane and leachate (estimated for a minimum period of 30 years).
The original agreement with SCS Field Services, Contract C21181509, approved by Council on October 25, 20212, expired on October 10, 2024. Amendment No. 1 extended the contract for a six-month term through April 10, 2025, without additional funding being needed. However, an additional six-month extension and authority for additional funds to cover the extended term is needed to allow staff time to conduct a competitive solicitation for a new contract while maintaining continuity of gas monitoring services and compliance with the various permits and regulations pertaining to the gas system.
ANALYSIS
The City requires the services of a qualified and experienced contracting firm to ensure regulatory compliance of the landfill’s gas collection system due to the complexity and quantity of the work. The current contract with SCS Field Services provides continuous services for gas monitoring and reporting for the landfill gas control system as required by regulators. The current contract needs to be extended in the form of an amendment (Attachment A), for another six-month term extending the end date to October 10, 2025 and increasing compensation by $46,203, which was calculated using existing rates and based on the services required during the extended period. This will allow SCS Field Services to continue providing the regulatorily required gas monitoring and reporting services for the closed landfill while staff prepares a formal Request For Proposals solicitation for a new contract. The Request For Proposals is anticipated to be posted to the City’s online procurement site in June 2025. As a result, an exemption to competitive solicitation for the additional six-month term was approved by the City Manager pursuant to Palo Alto Municipal Code section 2.30.360(d).
1 Bay Area Air Quality Management District’s (BAAQMD’s) Regulation 8, Rule 34; https://www.baaqmd.gov/~/media/dotgov/files/rules/reg-8-rule-34-solid-waste-disposal- sites/documents/rg0834.pdf?rev=41e786097ed348e99bf53c14f101e055&sc_lang=en 2 City Council, October 25, 2021; Agenda Item #4; SR #12080, https://portal.laserfiche.com/Portal/DocView.aspx?id=77&page=41&repo=r-704298fc&searchid=44d34e8e-3aae- 4c6d-a2d4-c2ef3c9802d2
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FISCAL/RESOURCE IMPACT
Funding for the additional six-month term of this contract (April 10, 2025 to October 10, 2025) is available in the Adopted Fiscal Year 2025 Refuse Fund operating budget. As shown in Table 1, the revised contract amount is not-to-exceed $417,012.
Table 1: Summary of Contract Costs for Landfill Gas Monitoring and Reporting Services:
Monitoring and Reporting per Year $112,366
Additional Services per Year $11,237
Total Annual Cost $123,603
SUBTOTAL Contract Not-to-Exceed Amount for the original 3-year term $370,808 Monitoring and Reporting for additional 6-month term (4/11/2025 – 10/10/2025) $46,203 GRAND TOTAL Contract Not-to-Exceed Amount through October 10,2025 $417,012
STAKEHOLDER ENGAGEMENT
This contract is for a continuation of existing landfill monitoring and reporting services that is required by multiple regulations. Engagement consisted of the procurement process for the initial contract.
ENVIRONMENTAL REVIEW
Council action on this item is exempt from review under the California Environmental Quality Act (CEQA) because the contract involves monitoring of existing facilities and involves no expansion of the existing use. CEQA Guidelines section 15301.
ATTACHMENTS
Attachment A: Partially Executed Amendment No. 2 to Contract with SCS Field Services; Contract #C21181509
APPROVED BY: Brad Eggleston, Director Public Works/City Engineer Item 9
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AMENDMENT NO. 2 TO CONTRACT NO. C21181509
BETWEEN THE CITY OF PALO ALTO AND
SCS FIELD SERVICES
This Amendment No. 2 (this “Amendment”) to Contract No. C21181509 (the “Contract” as defined below) is entered into as of April 7, 2025, by and between the CITY OF PALO ALTO, a California chartered municipal corporation ( “CITY”), and STEARNS, CONRAD, AND SCHMIDT CONSULTING ENGINEERS, INC. dba SCS FIELD SERVICES, a California corporation, located at 3900 Kilroy Airport Way, Suite 100, Long Beach, CA 90806 (“CONSULTANT”). CITY and CONSULTANT are referred to collectively as the “Parties” in this Amendment.
R E C I T A L S
A. The Contract (as defined below) was entered into by and between the Parties hereto for the provision of providing monitoring and reporting services for the solid waste disposal site, as detailed therein.
B. The Parties now wish to amend the Contract in order to (1) extend the contract term for six months through October 10, 2025; (2) increase the not-to-exceed total compensation by Forty-Six Thousand Two Hundred Three Dollars ($46,203), from Three Hundred Seventy Thousand Eight Hundred Nine Dollars ($370,809) to Four Hundred Seventeen Thousand Twelve Dollars ($417,012); and (3) update the Schedule of Rates, as detailed herein.
NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Amendment, the Parties agree:
SECTION 1. Definitions. The following definitions shall apply to this Amendment:
a. Contract. The term “Contract” shall mean Contract No. C21181509 between CONSULTANT and CITY, dated October 25, 2021, as amended by:
Amendment No. 1, dated September 24, 2024
b. Other Terms. Capitalized terms used and not defined in this Amendment shall have the meanings assigned to such terms in the Contract.
SECTION 2. Section 2 “TERM” of the Contract is hereby amended to read as follows:
“The term of this Agreement shall be from the date of its full execution through October 10, 2025 unless terminated earlier pursuant to Section 19 (Termination) of this Agreement.”
SECTION 3. Section 4 “NOT TO EXCEED COMPENSATION” is hereby amended to read as follows:
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“The compensation to be paid to CONSULTANT for performance of the Services shall be based on the compensation structure detailed in Exhibit C, entitled “COMPENSATION,” including any reimbursable expenses specified therein, and the maximum total compensation shall not exceed Three Hundred Seventy-Two Thousand One Hundred Fifty-One Dollars ($372,151.00). The hourly schedule of rates, if applicable, is set out in Exhibit C-1, entitled “SCHEDULE OF RATES.” Any work performed or expenses incurred for which payment would result in a total exceeding the maximum compensation set forth in this Section 4 shall be at no cost to the CITY.
Optional Additional Services Provision (This provision applies only if checked and a not- to-exceed compensation amount for Additional Services is allocated below under this Section 4.)
In addition to the not-to-exceed compensation specified above, CITY has set aside the not- to-exceed compensation amount of Forty-Four Thousand Eight Hundred Sixty-One Dollars ($44,861.00) for the performance of Additional Services (as defined below). The total compensation for performance of the Services, Additional Services and any reimbursable expenses specified in Exhibit C , shall not exceed Four Hundred Seventeen Thousand Twelve Dollars ($417,012.00), as detailed in Exhibit C.
“Additional Services” means any work that is determined by CITY to be necessary for the proper completion of the Project, but which is not included within the Scope of Services described at Exhibit A. CITY may elect to, but is not required to, authorize Additional Services up to the maximum amount of compensation set forth for Additional Services in this Section 4. CONSULTANT shall provide Additional Services only by advanced, written authorization from CITY as detailed in this Section. Additional Services, if any, shall be authorized by CITY with a Task Order assigned and authorized by CITY’s Project Manager, as identified in Section 13 (Project Management). Each Task Order shall be in substantially the same form as Exhibit A- 1, entitled “PROFESSIONAL SERVICES TASK ORDER”. Each Task Order shall contain a specific scope of services, schedule of performance and maximum compensation amount, in accordance with the provisions of this Agreement.
Compensation for Additional Services shall be specified by CITY in the Task Order, based on whichever is lowest: the compensation structure set forth in Exhibit C, the hourly rates set forth in Exhibit C-1, or a negotiated lump sum.
To accept a Task Order, CONSULTANT shall sign the Task Order and return it to CITY’s Project Manager within the time specified by the Project Manager, and upon authorization by CITY (defined as counter-signature by the CITY Project Manager), the fully executed Task Order shall become part of this Agreement. The cumulative total compensation to CONSULTANT for all Task Orders authorized under this Agreement shall not exceed the amount of compensation set forth for Additional Services in this Section 4. CONSULTANT shall only be compensated for Additional Services performed under an authorized Task Order and only up to the maximum amount of compensation set forth for Additional Docusign Envelope ID: 48FB660E-F872-44C2-B2C4-CE6E00AA80BB Item 9
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Services in this Section 4. Performance of and payment for any Additional Services are subject to all requirements and restrictions in this Agreement.”
SECTION 4. The following exhibit(s) to the Contract is/are hereby amended or added, as indicated below, to read as set forth in the attachment(s) to this Amendment, which is/are hereby incorporated in full into this Amendment and into the Contract by this reference:
a. Exhibit “A” entitled “SCOPE OF SERVICES, AMENDMENT NO. 2,” REPLACES PREVIOUS.
b. Exhibit “C” entitled “COMPENSATION, AMENDMENT NO. 2,” REPLACES PREVIOUS.
c. Exhibit “C-1” entitled “SCHEDULE OF RATES, AMENDMENT NO. 2”, ADDED.
SECTION 5. Legal Effect. Except as modified by this Amendment, all other provisions of the Contract, including any exhibits thereto, shall remain in full force and effect.
SECTION 6. Incorporation of Recitals . The recitals set forth above are terms of this Amendment and are fully incorporated herein by this reference.
(SIGNATURE BLOCK FOLLOWS ON THE NEXT PAGE.)
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SIGNATURES OF THE PARTIES
IN WITNESS WHEREOF, the Parties have by their duly authorized representatives executed this Amendment effective as of the date first above written.
CITY OF PALO ALTO
_____________________________
City Manager
APPROVED AS TO FORM:
_____________________________
City Attorney or designee
SCS FIELD SERVICES
Officer 1
By:__________________________
Name:_______________________
Title:________________________
Officer 2
By:__________________________
Name:_______________________
Title:________________________
Attachments:
Exhibit “A” entitled “SCOPE OF SERVICES, AMENDMENT NO. 2”, REPLACES PREVIOUS Exhibit “C” entitled “COMPENSATION, AMENDMENT NO. 2”, REPLACES PREVIOUS Exhibit “C-1” entitled “SCHEDULE OF RATES, AMENDMENT NO. 2”, ADDED Docusign Envelope ID: 48FB660E-F872-44C2-B2C4-CE6E00AA80BB Sr. Vice President
Galen S. Petoyan, Sr. Vice President
Anton Z. Svorinich, Vice President
Vice President
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EXHIBIT A
SCOPE OF SERVICES, AMENDMENT NO. 2
(REPLACES PREVIOUS)
CONSULTANT shall provide the Services detailed in this Exhibit A, entitled “SCOPE OF SERVICES”.
I. Background:
History and Phasing: The CITY owns and operates an unlined, class III municipal solid waste disposal site, located at 2380 Embarcadero Road in Palo Alto, California. The landfill reached refuse capacity and ceased accepting waste in 2011 and underwent final capping and regulatory closure in 2015. The landfill occupies approximately 126 acres of the 1800-acre, CITY owned Byxbee Park and Baylands parcel. The landfill is divided into phases, Phase I, Phase IIA, Phase IIB, and Phase IIC based on the timing of closure and conversion to parkland. Phase I comprises approximately 29 acres and was closed and developed into parkland in 1990. Phases IIA (23 acres), IIB (24 acres) and IIC (51 acres) were closed and converted to parkland in 1992, 2000 and 2015 respectively. Smaller areas of the landfill are closed off to park users on an as -needed basis for control system maintenance and settlement repairs.
The environmental control systems within the landfill consist of a vertical landfill gas extraction system and a retrofitted vertical leachate extraction system.
Landfill Gas System: The CITY’s landfill gas (LFG) collection system consists of 91 vertical extraction wells. Most of the gas wells are spaced approximately 200 feet apart, have been constructed with a 4 to 6- inch diameter schedule 40 PVC casings or high -density polyethylene (HDPE) casings placed within 24- inch diameter boreholes and have an average depth of approximately 35 feet below the landfill surface. An HDPE piping network collects and transmits gas from the extraction wells to a blower- flare facility where it is combusted. The blower -flare facility is located on Palo Alto Regional Water Quality Control Plant (PARWQCP) Property near the landfill northwest boundary. The pipe network is below grade throughout the landfill facility, buried within the final cover system. In the Phases that were capped with a clay layer (Phase I, IIA, IIB), the gas collection system pipes are buried above the clay cap within a thickened vegetative soil layer.
In Phase IIC the pipes are buried within a 4-ft thick layer of evapotranspirative cover material.
Currently, 5 leachate wells are connected to the gas collection system due to the detection of methane above regulatory limits inside and/or outside those wells. During the term of this contract, The CITY may elect to place an additional 19 leachate wells under vacuum and add them to the landfill gas collection system. Any monitoring required under the regulations of landfill gas wells would include those leachate wells that have been hooked up to the landfill gas collection system.
Leachate System: The CITY’s Leachate Collection and Removal System (LCRS) consists of 24 vertical extraction wells. These wells are typically constructed with 6 -inch diameter Schedule 80 PVC casings, and strategically distributed throughout the landfill. Well spacing averages approximately 300 feet, with locations being selected based upon historic information and local Docusign Envelope ID: 48FB660E-F872-44C2-B2C4-CE6E00AA80BB Item 9
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leachate levels at the time of installation. Each well has a dedicated pneumatic pump, and compressed air is delivered to each well from a centrally located compressor via a network of welded HDPE piping. Leachate is collected from the wells and transported via the piping network to the CITY sanitary sewer main adjacent to the western boundary of the landfill.
Leachate elevations within the refuse mass are measured through a set of 17 vertical piezometers.
Condensate Collection: Gas condensate produced by the LFG collection system is collected in sumps and pumped into the facility’s LCRS via pneumatic submersible pumps. There are currently eleven (11) condensate sumps located in Byxbee Park (Phase I), Phase IIA, Phase IIB and Phase IIC, combined.
II. General Requirements:
This scope of services includes: 1) Performing routine LFG collection and emission control system monitoring and reporting; 2) Performing annual landfill flare stack emissions sampling, analyses and reporting; and 3) Compiling and preparing various LFG reports and 4) provide miscellaneous engineering support services.
A. CONSULTANT shall comply with all requirements of the Landfill’s Permit to Operate, Regulation 8, Rule 34 of the Bay Area Air Quality Management District’s (BAAQMD’s) regulations, including the regulations for Methane Emissions from Municipal Solid Waste Landfills, CCR Title 17, §95460-95476, and the EPA Greenhouse Gas Rule (40 CFR Part 98, Subpart HH) as well as all pertinent plans and specifications relating to work associated with maintenance and operation of the site’s environmental control systems.
B. CONSULTANT shall provide all necessary services, labor, tools, materials, equipment, vehicles, and instrumentation for the routine scope of services in this Agreement including, but not limited to monitoring equipment for detecting LFG and any other equipment necessary to perform the routine scope of services contained herein. These items of equipment are considered necessary items for CONSULTANT, and separate charges for use of these items in the course of the routine work, shall not be paid by CITY.
C. CITY will provide all applicable permits for work performed in accordance with this Agreement. The CITY has a landfill maintenance contractor that will perform repairs to the gas and leachate collection systems as needed. All routine operation or monitoring work shall take place either aboveground or in buried shallow vaults (less than three feet in depth).
CONSULTANT shall not be responsible for the overall quality of the gas with regard to trace components.
D. Personnel job titles and required experience levels are listed below. All field personnel performing work listed in this Agreement shall have the following minimum qualifications:
Senior Technician (or equivalent)
• Five (5) years experience performing work on LCRS and LFG systems; • Ability to tune and optimize the vacuum on the LFG collection system without supervision or close oversight;
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• Ability to detect LFG system and LCRS leaks and diagnose potential failures before they occur; and,
• General understanding of landfill regulations relating to the LCRS and LFG systems.
Technician (or equivalent)
• Two (2) years experience performing work on LCRS and LFG systems; • Ability to detect LFG system and LCRS leaks and diagnose potential failures before they occur; and,
• General understanding of landfill regulations relating to the LCRS and LFG systems.
CITY will authorize site access for CONSULTANT personnel, equipment, and materials for the completion of the work. CONSULTANT personnel shall be responsible for communication and coordination of onsite work by notifying appropriate CITY personnel at the landfill office prior to beginning work onsite.
III. Task 1:
Work To Be Performed
Task 1 - Routine LFG System, Flare, Well-Head Monitoring, and Surface Monitoring and Reporting
Definition For Task 1:
CONSULTANT shall provide a Senior Technician (or equivalent) with an experience and skill level defined above, billed at the hourly rates specified in the rate sheets specified in the Fee Schedule for the performance of routine LFG system monitoring, well-head monitoring and surface monitoring and reporting
A) Senior Technician (or equivalent) is expected to spend 613 hours onsite per contract year. Field Time Estimate breakdown for Task 1 is expected to be:
• One 8 hour day (onsite) per week for well and component adjustment and monitoring (416 hours per year);
• Up to four 16 hour events (onsite) per year for surface and component monitoring (64 hour per year); and
• Miscellaneous additional follow-up time for adjusting high-oxygen LFG and Leachate wells (133 hours onsite per year).
At CITY’s request, CONSULTANT shall train CITY staff while completing the routine work performed by the Senior Technician.
B) Management/Supervisor/Office Support Staff to support Task 1.
C) Remote monitoring and control of landfill flare.
General Scope of Services For Task 1
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Unless otherwise specified by CITY, a date-specific schedule or a set day of the week schedule shall be submitted by CONSULTANT for approval by CITY, and shall specify when the LFG maintenance needs to occur as prescribed in the Permit To Operate, and/or Rule 8-34 regulations.
Generally, Task 1 services shall include the following:
a. Monitoring once per week of 91 LFG well -heads, 5 (up to 24) leachate well -heads (connected to the gas collection system), 11 condensate sumps, flare station and other valves, fittings and components;
b. Monthly measurement of methane and non-methane organic compounds (NMOC), oxygen concentration and pressure within each well -head (landfill gas wells and leachate wells which are connected to the gas collection system) in accordance with Regulation 8, Rule 34, and Title 17, Section 95469. If the well head does not meet the standards of Regulation 8, Rule 34, Section 305, and Title 17, §95469, then CONSULTANT shall document and make adjustments following Regulation 8, Rule 34, Section 414 scheduling requirements. It is anticipated that some follow up visits shall be necessary by the Senior Technician for the purpose of monitoring and adjusting wells with high oxygen content. CONSULTANT shall make recommendations to CITY for further repairs if necessary. CONSULTANT shall compile the wellhead information, including all follow -up monitoring results and submit monthly reports to CITY, within 21 days from the end of each month. At CITY discretion, CONSULTANT shall train CITY while completing the field work portion of this work. The monitoring requirements of the rule are located in §95469 and §95470. These requirements are listed below:
i. Monthly wellhead monitoring and requirement to achieve negative pressure at all wellheads, including corrective action/re-monitoring.
ii. Quarterly instantaneous surface emissions monitoring (SEM) at 25-foot spacing with a 500 ppmv methane limit, including testing of cover penetrations, with corrective action/re-monitoring.
iii. Quarterly leak testing of LFG collection system components not under vacuum at a 500 ppmv methane limit, including corrective action/re-monitoring. iv. Quarterly integrated surface sampling with a limit of 25 ppmv methane. v. Continuous flow and temperature monitoring.
vi. Quarterly monitoring of flare components which contain landfill gas and/or which contain landfill gas under positive pressure.
c. In addition to the monthly well head monitoring, CONSULTANT shall monitor and compile records to support the LFG component quarterly leak monitoring requirements of the BAAQMD’s Regulation 8, Rule 34, Section 501 and 503 and Title 17, §95460- 95476.
Separate Quarterly Component Monitoring reports shall be submitted to CITY within 21 days from the end of each quarter. At CITY discretion, CONSULTANT shall train CITY while completing the field work portion of this work.
d. Adjust/tune and optimize the vacuum on the individual wells in order to maximize methane extraction while minimizing oxygen intrusion into the landfill; At CITY discretion, CONSULTANT shall train CITY while completing the field work portion of this work.
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e. Quarterly measurement of methane and NMOC concentration on the landfill surface in accordance with site surface monitoring plan and Regulation 8, Rule 34, Section 501 and 506 and including the newly adopted regulations for Surface Emissions Monitoring (SEM), CCR Title 17, §95469 listed below:
i. Quarterly instantaneous surface emissions monitoring (SEM) at 25-foot spacing with a 500 ppmv methane limit, including testing of cover penetrations, with corrective action/re-monitoring.
ii. Quarterly leak testing of LFG collection system components not under vacuum at a 500 ppmv methane limit, including corrective action/re-monitoring. iii. Quarterly integrated surface sampling with a limit of 25 ppmv methane.
f. CONSULTANT shall establish a portable wind station or obtain measurements from the Palo Alto Airport to document compliance with meteorological conditions during the monitoring events. A detailed written report summarizing the results of the monitoring activities shall be provided to CITY within 21 days of the end of each quarter. A date - specific schedule shall be developed by CONSULTANT and submitted for approval by CITY.
g. Weekly monitoring of the flare station, including download of the data logger. Document and collect all data including all startup, shutdown and malfunction paperwork. Data to be collected, recorded, and stored in a computer or web data base (with current security access provided to CITY) includes the following:
i. Date, time, and monitoring personnel.
ii. Meteorological condition (i.e., wind velocity, barometric pressure ambient temperature, weather conditions, etc.).
iii. Extraction blower operating inlet and outlet temperatures and pressures. iv. Methane gas, oxygen gas, carbon dioxide and balance gas concentrations at flare inlet or Regional Water Quality Control Plant Incinerator as required by the BAAQMD.
v. Flare exit gas temperature (only when flare operational). vi. LFG flow rate to flare, or CITY incinerator.
vii. Flare combustion louver (only when flare is operational). viii. Flow control valve positions.
ix. Check pilot ignition system propane storage tank level. x. LFG control system blowers, flame arresters, flares, control panel, well fields, and condensate pump systems shall be observed for the following:
• Accessibility.
• Vandalism.
• Malfunctions.
• Leaks.
xi. Weekly record blower running hours;
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h. Once per quarter, hydrogen sulfide (H2S) shall be tested by CONSULTANT at the Flare Station inlet utilizing field Draeger test tubes; Inspect flame arrester; and, inspect burner heads.
i. Compile all data from the tasks listed above to be utilized by CONSULTANT in preparing the required annual reports (Task 3).
CONSULTANT shall provide one (1) copy of all field records generated during on- site service before leaving the site for the day.
IV. Task 2:
Task 2 Routine Landfill Flare Stack Emission Sampling, Analytical Testing and Reporting
CONSULTANT shall conduct the flare source test on the Flare located at the Regional Water Quality Control Plant in accordance with the Title V Major Facility Review Permit No. A2721, dated June 4, 2012 (“Title V Permit”), Condition 1028, Item Nos. 15 and 16 including determination of flare destruction efficiency. Additionally, because the landfill is subject to the AB32 Landfill Methane Rule (see Task 3 of this Scope of Services), the flare must be tested annually to document compliance with Rule’s 99% methane destruction requirement, as specified in Section §95471 of the Rule. CONSULTANT shall perform the annual flare testing while the contract is in place. In accordance with Item No. 15 of the Title V Permit, CONSULTANT shall notify the Bay Area Air Quality Management District (BAAQMD) at least 14 days in advance of the test and shall submit to BAAQMD the compliance plan for the source test. CONSULTANT shall submit a report summarizing the results of the source test to CITY and BAAQMD within 45 days of completion of the test.
V. Task 3:
Task 3 Routine Report Preparation
Task 3 is outlined below and includes report preparation in compliance with Bay Area Air Quality Management District (BAAQMD) Rule 8-34, AB32 Landfill Methane Rule, and EPA Greenhouse Gas Reporting Rule, as listed below. CONSULTANT shall provide a draft of each report to CITY for review prior to submittal to BAAQMD, and shall incorporate CITY’s comments into the final reports for submittal. The final reports and certifications shall be signed by the responsible CITY official, where required.
A. Annual Rule 8-34 Report (One Report Annually)
CONSULTANT shall prepare the Rule 8 -34 annual reports required by the BAAQMD.
CONSULTANT shall collect the necessary data to complete the reports under Section 411 of Rule 8-
34. The reports shall be developed in the format prescribed by the BAAQMD. The reporting period covers December 1
st through November 30th. The report is due the last day of the month after the end of the reporting period. The annual reports shall contain the following information, as required:
Docusign Envelope ID: 48FB660E-F872-44C2-B2C4-CE6E00AA80BB Item 9
Attachment A - Partially
Executed Amendment
No. 2 to Contract with
SCS Field Services;
Contract #C21181509
Item 9: Staff Report
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13 Packet Pg. 347 of 660
Vers.: Aug. 5, 2019