Attachment B
1 GENFARE SUBSCRIPTION AND SERVICES AGREEMENT
THIS SUBSCRIPTION AND SERVICES AGREEMENT (the “Agreement”) is made effective as of ___________________, (“Effective Date”) by and between Genfare, LLC, a limited liability company, with its principal place of business place at 800 Arthur Avenue, Elk Grove Village, IL 60007 (“Genfare”) and The City of Santa Maria , a California Municipal Corporation, having a place of business at 1303 Fairway Dr, Santa Maria, CA 93455 (“Customer”), which may each be referred to as a “Party” or collectively as the “Parties”.
WHEREAS, Genfare offers a comprehensive digital fare management platform having various Service s and Software offerings; and
WHEREAS, Customer desires to obtain the Services and/or Software offerings as set forth in an applicable Attachment under this Agreement.
In consideration of the mutual covenants, promises, terms, and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, Genfare and Customer agree as follows:
1. Definitions
1.1 “Affiliated Users” means organizations, entities, affiliates or partners of Customer and to which access to the Services is approved and desired by Customer.
1.2 “Attachment” means the document that sets forth the subscription details for the Services and the Software, and any product specific terms applicable to Customer’s subscript ion, more specifically the Genfare Link Services Attachment and Payment Processing Services Attachment attached to this Agreement.
1.3 “Documentation” means certain Genfare documentation that describes the use, functions, features, or purpose of the Services or any component thereof, in any medium, which is delivered to Customer by Genfare under this Agreement, including Genfare's user manuals, training materials, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, and complete or partial copies of the foregoing.
1.4 “Equipment” means certain equipment purchased by Customer from Genfare under a separate agreement which is to be used by Customer in connection with the Services.
1.5 “Initial Subscription Term” means the period of time specified on an applicable Attachment.
1.6 “Intellectual Property Rights” means patent, copyright, trade secret, know-how, trademark, trade dress rights, and any other intellectual property or proprietary rights in the Services, Software, Equipment and all software, equipment, processes and facilities utilized by or on behalf of Genfare to provide the services contemplated herein.
1.7 “Permitted Users” means (a) Customer’s employees (including temporary employees and contract employees) authorized by Customer to access and use the Services on Customer’s behalf, and (b) Customer’s service providers that need to access the Services, provided such third parties are subject to written restrictions comparable to the restrictions on use in this Agreement and may only use the Services for purposes of providing Services to Customer (provided that the acts and Attachment B
2 omissions of such third parties shall be deemed the acts and omissions of Customer) and (c) for Customers whose SaaS Services include the “Organizational Module”, the applicable Affiliated Users authorized for such access in an Attachment.
1.8 “Renewal Subscription Term” means any extension to this Agreement, commencing upon the expiration of the Initial Term or any extensions thereto, as provided in this Agreement or otherwise in an Attachment.
1.9 “SaaS” means the software as a service subscribed to by the Customer. The SaaS Services being subscribed to by Customer are more specifically detailed in the Services Attachment.
1.10 “Services” means the SaaS listed on an Attachment and Support.
1.11 “Software” means Genfare’s proprietary software that is to be installed on Customer’s computer system, including Network Manager, and/or the Garage Data System, and/or software that may be embedded on the Equipment.
1.12 “Subscription” means the Customer’s payment to access, use and obtain the benefit of the Services.
1.13 “Subscription Fees” means the fees set forth in an Attachment for providing the Services.
1.14 “Subscription Term” means the Initial Subscription Term together with any Renewal Subscription Terms.
1.15 “Support” means those support services to be provided by Genfare pursuant to and in accordance with the terms and conditions set forth herein, as more particularly described in Exhibit A attached hereto.
1.16 “Term” means the term of the Agreement which begins on the Effective Date and continues until:
(i) this Agreement is terminated by a Party as provided herein or (ii) this Agreement expires as provided herein, whichever is earlier.
2. Access Rights, License and Services
2.1 Subject to the terms of this Agreement and during the Subscription Term, Genfare grants Customer and its Permitted Users a limited, non-exclusive, non-transferable, revocable, non- sublicensable right to access and use the Services solely for Customers internal business purposes.
2.2 Subject to the terms of this Agreement , Genfare grant s Customer a n on-exclusive, non - transferable, revocable, non-sublicensable license to install and/or use the Software solely for Customers internal business purposes.
2.3 In the event that Customer desires to add services and/or increase its scope of use of the Services and/or add Permitted Users, Customer may do so by purchasing the applicable access rights from Genfare at Genfare’s then current rates or as otherwi se specified in the applicable Attachment. In such event, such Attachment shall be modified in writing to reflect the new scope and Subscription Fee changes agreed to by the Parties. Notwithstanding anything herein to the contrary, such modification to an Attachment can be evidenced through email or confirmation.
Attachment B
3 2.4 Customer’s rights granted under this Agreement may not be leased, sublicensed or otherwise transferred or made available for use by unaffiliated third parties, in whole or in part, by Customer without Genfare’s prior written consent or as expressly permitted in this Agreement.
Customer shall not use or attempt to use the Services in a manner that would exceed the scope of the rights granted under this Agreement or facilitate any such unauthorized access for any third party.
2.5 Customer shall not without the express written consent of Genfare: (a) reverse engineer, reverse assemble, decompile, or disassemble any technology underlying the Services and Software; (b) otherwise attempt to discover the source code to the Services or Software ; (c) translate or migrate the Services or Software into another format, language, or hardware platform; (d) make the Services or Software available to anyone other than Permitted Users; (e) alter or remove any copyright, trademark or other proprietary notices on or within the Services , Software or Documentation; (f) create derivative works based upon the Services or Software in whole or in part; (g) develop or modify any software based on ideas, processes or materials incorporated into the Services or Software, or (h) permit any third party to do any of the foregoing.
2.6 Genfare may audit Customer’s use of the Services or Software to verify compliance with the terms of this Agreement. Customer agrees to cooperate with such audit and provide Genfare with reasonable assistance and access to information. If the audit reveals an underpayment for Services by Customer, Customer shall pay Genfare all fees actually due and pay all costs and fees for such audit.
3. Payment
3.1 Fees. Customer shall pay Genfare the fees set forth in Attachment as set forth herein. Such fees may include the following:
3.1.1 Implementation Fee. This fee is a one -time fee for the set -up and implementation of the Services.
3.1.2 Annual Subscription Fees . This fee is payable annually in advance for Customer’s access to the Services. The annual Subscription Fees for the first year of the Subscription Term will be invoiced upon the commencement of the Subscription Term. The annual Subscription Fees for all subsequent years of the Subscription Term will be payable prior to the anniversary date of the start of the Subscription Term.
3.1.3 Transaction Fees. Customer agrees that Genfare will invoice the amount due and owing on at least a monthly basis. For the avoidance of doubt, Transaction Fees are not subject to the automatic yearly inc rease of three percent (3%) as set forth in Section 3.5 of the Agreement, but that Genfare reserves the right to increase any fees for a subsequent Renewal Subscription Term in its sole discretion by providing Customer at least sixty (60) days’ notice before the end of the then-current Subscription Term.
3.1.4 Gateway Fees and Processing Fees. Customer agrees to pay Genfare the Gateway Fees and Processing Fees included as part of the Transaction Fees. Genfare reserves the right to change its Gateway Fees and/or Processing Fees after the Initial Subscription Term.
Genfare will notify the Customer of changes to Genfare’s Gateway Fees and/or Processing Fees at least thirty (30) days prior to the end of Customer’s then-current term.
Notwithstanding anything to the contrary contained herein, Genfare reserves the right to Attachment B
4 modify the Gateway Fees and/or Processing Fees upon thirty (30) days prior written notice to Customer to pass through price increases from Third Party Providers, payment networks and other third party service providers.
3.1.5 License Fee . This fee is a one -time fee for the Customer to install and/or use the Software in accordance with this Agreement.
3.1.6 Fees increase due to expansion of Services. In the event that Customer increases the scope of Services, Genfare shall invoice Customer the applicable fees as identified on the updated Attachment.
3.2 Other Fees. With respect to other fees specified in an Attachment, such fees shall be invoiced as set forth in Attachment or, if Attachment is silent, invoiced as occurred on a monthly basis.
Subject to any ter ms specified in Attachment, Genfare may increase such other fees once in any twelve (12) month period upon thirty (30) days’ prior written notice to Customer.
3.3 Taxes. Fees stated in Attachment do not include applicable taxes. Unless Customer is a tax exempt entity and provides Genfare with reasonable documentation demonstrating tax exempt status, Customer agrees to bear and be responsible for the payment of all taxes, except for taxes based upon Genfare’s income, including but not limited to, all sales, use, rental receipt, personal property, customs duties or levies or other taxes, which may be le vied or assessed in connection with this Agreement. Customer shall pay such tax when due or reimburse Genfare as applicable. If any tax is required to be paid by Genfare, the full amount of such tax, including any interest and penalties, will be invoiced to Customer, whether or not this Agreement is then in effect, and promptly paid by Customer.
3.4 Invoice Terms. Customer shall pay in full all amounts owed in an invoice within thirty (30) days from the invoice date except as otherwise provided in an Attachment. If Genfare does not receive payment by the payment date, Genfare in its sole discretion may impose a late payment charge equal to the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum rate allowed by law beginning thirty-one (31) days after the invoice date, and/or Genfare may suspend the Services for non-payment.
3.5 Fee Increases. During the Subscription Term, unless the Parties agree otherwise in writing, the annual subscription or license fee shall automatically increase by three percent (3%) each year; provided, however, that Genfare reserves the right to increase any fees for a subsequent Renewal Subscription Term in its sole discretion by providing Customer at least sixty (60) days’ notice before the end of the then-current Subscription Term.
4. Term; Termination
4.1 This Agreement shall be in effect for the Term (as defined above).
4.2 Unless otherwise specified in an Attachment, at the end of the Initial Subscription Term and each Renewal Subscription Term, the Subscription shall automatically renew for an additional one (1) year period unless either Party notifies the other that this Agreement will not renew at least forty-five (45) days prior to the expiration of the then-current Subscription Term.
4.3 Either Party may terminate this Agreement or a Subscription, including any and all access and usage rights for the Services provided herein, for a material breach by the other Party that is not cured within thirty (30) days after written notice of such material breach.
Attachment B
5 4.4 In addition to the termination provisions contained herein, the licenses granted in Section 2.2 of this Agreement shall automatically terminate if: (a) any of the Equipment or Software is sold or transferred to a third party or moved outside of the United States; or (b) the Software is no longer used in connection with the Services or the Equipment.
4.5 Genfare may immediately terminate this Agreement or a Subscription, or suspend its performance thereunder, if (i) Customer becomes insolvent or bankrupt or ceases to do business, (ii) Customer breaches its obligations under the provisions of Section 5 or 6 below, (iii) the provision of the Services , or any portion thereof, to Customer by Genfare is, in Genfare’s sole opinion, no longer commercially viable , (iv) the Services are deemed, or Genfare reasonably believes the Services , or any portion thereof, violate an applicable local, state, or federal law or regulation , or ( v) Genfare has a reasonable belief that the continued provision of Services puts Genfare, or its systems at any operational or security risk.
4.6 Genfare may immediately terminate this Agreement, or suspend its performance hereunder if (i) its agreement with the gateway service provider or the payment processor is suspended or terminated for any reason, (ii) it or any of its vendors or service providers experiences a force majeure, (iii) it is required to due to the formal or informal action or request of a regulatory or payment card network, or (iv) Genfare reasonably believes such action is necessary to prevent material harm due to fraud, violations of applicable laws or regulations, breach of payment card network rules, or other causes.
4.7 Unless Genfare terminated this Agreement pursuant to Section s 4.2 or 4.4, Customer may continue to utilize the Services for a transition period of up to ninety (90) days after termination of this Agreement, subject to payment of the applicable Subscription Fees (the “Transition Period”). Should Customer require further assistance during the Transition Period, Genfare may, in its sole discretion, offer additional transition services at Genfare’s then -current rates.
In any event, upon request from Customer, Genfare shall reasonably cooperate with Customer to export Customer’s data from the Services in a delimited TXT file during the Agreement and for a period of up to sixty (60) days after termination.
5. Confidential Information
5.1 “Confidential Information” means any tra de secret or other information of Genfare or Customer, whether of a technical, business, or other nature, which is disclosed by one Party (“Discloser”) to the other Party (“Recipient”) orally or in writing and that (a) is marked “confidential” or (b) is of a nature that a reasonable person would understand to be confidential.
Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the Discloser; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the Discloser; (c) is received from a third party who had a lawful right to disclose such information (without corresponding confidentiality obligations) to it; or (d) is or becomes part of the public domain through no fault or action of Recipient. Genfare acknowledges that the City is a public agency subject to the Public Records Act and that the City will comply with the production requirements of the Public Records Act.
5.2 Recipient will: (a) use the Confidential Information of the Discloser solely for the purpose for which it is provided; (b) not disclose Confidential Information to competitors of the Discloser, (c) not disclose such Confidential Information to a ny third part y, and (d) protect su ch Confidential Information from unauthorized use and disclosure to the same extent that it Attachment B
6 protects its own Confidential Information of a similar nature, but using no less than a reasonable degree of care in consideration of the nature of the Confidential Information. However, Recipient may disclose Confidential Information to its employees, agents or contractors who need to know such Confidential Information in order to obtain or provide the Services hereunder so long as Recipient limits the scope of di sclosure of Confidential Information to only that which is necessary under the circumstances, such third parties are subject to written confidentiality obligations substantively similar to this Agreement and are restricted to using the Confidential Information for the sole purpose of obtaining or providing the Services. Each Party will be responsible for any improper disclosure of Confidential Information by such Party’s employees, agents, or contractors.
5.3 Recipient may disclose Confidential Information of the Discloser to the extent required to satisfy any legal requirement of a competent governmental or regulatory authority, provided that (to the extent permitted by law) it promptly advises the Dis closer prior to making such disclosure and provides Discloser a reasonable opportunity to object to such disclosure or take such other action as it considers appropriate to protect the Confidential Information.
5.4 Within thirty (30) days of the termination of this Agreement, Recipient will return or destroy (and provide certification of such destruction) any materials in any medium that contains or refers to Discloser’s Confidential Information. Subject to the confidentiality obligations herein, Recipient may retain copies of Discloser’s Confidential Informat ion to the extent required to document its performance or for compliance with applicable laws or regulations.
5.5 Customer shall take all necessary steps to ensure that the provisions of this Section are not violated by any employee, service provider, Permitt ed User or any other person under Customer’s control or in its service.
6. Ownership; Restricted Rights
6.1 The Parties agree that, a s between Customer and Genfare, Genfare retains ownership of and any and all of all Intellectual Property Rights and any information, materials, developments or deliverables created by Genfare and/or its licensors under this Agreement that are not expressly granted to Customer in this Agreement. If possible, Customer shall permanently erase or otherwise destroy the Software contained therein before recycling, discarding, or disposing of any media or hardware that contain any installed Software.
6.2 Customer retains ownership of all Customer specific data entered into and /or generated by Customer and its Permitted Users’ use of the Services (the “Customer Data”) . Provided, however, Customer shall have no rights to any data in Genfare’s proprietary format, but Genfare shall reasonably cooperate with Customer to export Customer’s data from the SaaS in a delimited TXT file at Customer’s request.
6.3 Customer hereby grants Genfare a limited license to aggregate and/or anonymize the Customer Data during the Term of this Agreement and an unlimited, perpetual and irrevocable license to use, reproduce, and distribute such aggregated and/or anonymized Customer Data for any legal purpose. Notwithstanding the foregoing, Genfare s hall own all usage data generated by the Services.
6.4 Certain features of the Services may require the use of Customer’s name, logo, trademarks, and/or tradenames (“Customer Branding”). Should Customer’s use of the Services require Customer Branding, Customer grants Genfare a license to reproduce, copy, distribute and use Attachment B
7 such Customer Branding in Genfare’s provision of the Services. By submitting, posting or displaying Customer Branding through the Services or to Genfare, Customer grants Genfare a limited, worldwide, royalty-free, and non-exclusive license to use, copy, encode, store, archive, reproduce, edit, adapt, modify, translate, transmit, publish, publicly display, and distribute the Customer Branding for the limited purpose of providing Customer the Services during the Term of this Agreement and to store any archived instances of Customer Branding according to Genfare’s then -current data management policy. CUSTOMER REPRESENTS AND
WARRANTS THAT CUSTOMER HAS THE RIGHT TO LICENSE THE CUSTOMER
BRANDING TO GENFARE, AND IN THE EVENT CUSTOMER DOES NOT HAVE SUCH
RIGHTS, CUSTOMER AGREES TO INDEMNIFY AND DEFEND GENFARE AGAINST
CLAIMS ARISING OUT OF THE USE OF SUCH CUSTOMER BRANDING, EXCEPT TO
THE EXTENT THAT SUCH CLAIM IS BASED ON A MODIFICATION OR ALTERATION MADE BY GENFARE.
6.5 Certain portions of the Services may be branded with Genfare’s or its vendors’ or service providers’ trademarks, logos and copyright notices. Customer agrees that it will not hide, remove, modify or otherwise change any such trademarks, logos or notices.
7. Warranties; Disclaimers
7.1 Each Party warrants that it has the right and power to enter into this Agreement and to perform its obligations herein. Genfare hereby warrants that it has the right to provide the Services and grant the licenses to Customer in the manner provided in this Agreement.
7.2 Genfare warrants that the Services and Software shall materially conform to the specifications in the then-current Documentation for a period of ninety (90) days after Genfare first makes the Services and Software available for Customer’s use. Genfare’s sole obligation under this warranty (which shall be Customer’s exclusive remedy) shall be to use reasonable efforts to correct demonstrated material defects in the Services or Software, and supply Customer with access to a corrected version of such Services or Software, or a commercially reasonable workaround as soon as practicable after Customer has notified Genfare of such defects.
Genfare’s warranty obligations hereunder shall not apply to the exten t the nonconformity results from: (a) modifications to the Services or Software by anyone other than Genfare or its contractors, (b) use of the Services or Software contrary to the terms of this Agreement or the instructions in any related materials, or (c) the combination of the Services or Software with any third party hardware or software not expressly recommended or approved by Genfare.
Genfare does not warrant any third party hardware or software utilized to deliver the Services, but will pass through any third party vendor’s warranties to the extent permitted by the vendor.
If Genfare determines that a malfunction or error is due to the hardware or software of Customer or a third party, or out of date or unsupported versions of the Software, Genfare will so inform Customer, and it will be Customer’s responsibility to obtain and pay for any repairs, updates or modifications required. Any of the above malfunctions will not relieve Customer of any of its obligations hereunder.
7.3 EXCEPT AS SPECIFICALLY SET FORTH ABOVE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS.” TO
THE MAXIMUM EXTENT ALLOWED BY LAW, GENFARE AND ITS LICENSORS ,
VENDORS AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF Attachment B
8 TRADE, AND GENFARE EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
7.4 GENFARE DOES NOT WARRANT THA T: (A) OPERATION OF ANY OF THE
SERVICES OR SOFTWARE SHALL BE UN INTERRUPTED OR ERROR FREE, (B)
FUNCTIONS CONTAINED IN THE SERVICES AND SOFTWARE SHALL MEET THE CUSTOMER’S REQUIREME NTS, OR (C) THE SERVICES OR SOFTWARE SHALL
OPERATE IN COMBINATION WITH (I) OTHER HARDWARE OR SOFTWARE OTHER
THAN HARDWARE AND SOFTWAR E EXPRESSLY APPROVED OR RECOMMEND BY GENFARE IN WRITING, OR (II) UNSUPPORTED VERSIONS OF THE SOFTWARE.
7.5 Customer acknowledges and agrees that Genfare and its licensors are not responsible for: (i) the accuracy or integrity of any data submitted by Customer or its Permitted Users, (ii) the performance of Customer’s or its Permitted User’s equipment, (iii) delivery of services or connectivity provided by third parties to Customer and its Permitted Users, even if such third parties were identified by Genfare, or (iv) any downtime, loss or corruption of data that occurs as a result of transmitting or receiving data or viruses via the Internet.
8. Infringement Remedy
8.1 Should the Services, become, or in Genfare’s opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright, Genfare may, in its sole discretion, (a) procure for Customer, at no cost to Customer, the right to continue to use the Services, (b) replace or modify the Services, at no cost to Customer, to make them non-infringing, provided that substantially the same functionality is provided by the replacement or modified Services, or (c) if in Genfare’s judgment the right to continue to use the Services cannot be reasonably procured or the Services cannot reasonably be replaced or modified, terminate the subscription to use all or just the potentially infringing Services and grant Customer a pro-rated refund on any advance Subscription Fees paid for such potentially infringing portions of the Services for the remainder of the Subscription Term.
8.2 Customer shall forfeit all rights under this Section 8 if it alters or modifies the Services in any manner, or if such infringement is based upon the combination of the Services with any third party hardware or software.
8.3 Genfare will defend, indemnify, and hold Customer harmless from and against any loss, cost, and expense that Customer in connection with a third party claim that use of the Services infringe any United States patent issued as of the Effective Date of this Agreement or any trade secret or copyright of others. G enfare’s obligations under this indemnification are expressly conditioned on the following:
(a) Customer must promptly notify Genfare in writing of any such claim; (b) Genfare or its vendor or service providers, as applicable, must have sole control of the defense of any such claim and of all negotiations for its settlement or compromise; and (c) Customer must reasonably cooperate with Genfare to facilitate the settlement or defense of the claim.
8.4 Notwithstanding anything herein to the contrary, Genfare shall have no liability for any claim of infringement based on the use or combination of the Services or Licensed Software with software or other materials not provided or expressly approved by Genfare.
9. Limitation of Liability
Attachment B
9 9.1 IN NO EVENT WILL CUSTOMER OR A GENFARE PARTY BE LIABLE TO THE PARTY
FOR SPECIAL, INDIREC T, INCIDENTAL, CONSE QUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES IN CONNECTION WITH THE SERVICES OR SOFTWARE
OR THE PERFORMANCE O R NONPERFORMANCE OF SERVICES OR SOFTWARE,
REGARDLESS OF THE THE ORY OF LIABILITY, EV EN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSI BILITY OF SUCH DAMAG ES. IN NO EVENT WIL L A
GENFARE PARTY BE LIABLE TO CUSTOMER FOR ANY LOSS OF REVENUES, LOSS
OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, ARISING OUT OF CUSTOMER’S U SE OF, OR INABILITY TO USE, OR THE PERFORMANCE O R NONPERFORMANCE OF, THE SERVICES OR THE SOFTWARE. “GENFARE PARTY”
MEANS ANY GENFARE OR ANY LICENSOR, VENDOR OR SERVICE PROVIDER OF
GENFARE, INCLUDING WITHOUT LIMITATION ANY GATEWAY SERVICE
PROVIDER, PROCESSING SERVICE PROVIDER, ACQUIRING BANK, OR PAYMENT
NETWORK, OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR AFFILIATES.
9.2 IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE GENFARE
PARTIES UNDER THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
10. Miscellaneous
10.1 Conflicts. In the event of a conflict between the terms contained herein and the terms in an Attachment or Exhibit A , the order of pre cedence is: Attachment, the main body of the Agreement, Exhibit A.
10.2 Public Announcements. Customer grants Genfare and its affiliates the right to use Customer’s name, logo, trademarks and/or trade names in press releases, product brochures , internal reports, shareholder reports, proposals and demos indicating that Customer is a customer of Genfare. All other public statements or releases shall require the mutual consent of the Parties.
10.3 Independent Contractor . The relationship of the Parties hereunde r is that of independent contractors, and neither Party shall be considered to be a partner, joint venture, employer or employee of the other under this Agreement. This Agreement creates no agency in either Party, and neither Party has any authority whatso ever to bind the other Party in any transaction or make any representations on behalf of the other Party.
10.4 Survival. Neither expiration nor termination of this Agreement shall terminate those obligations and rights of the Parties pursuant to provisions of this Agreement which by their express terms are intended to survive and such provisions shall survive the expiration or termination of this Agreement. Without limiting the foregoing, the respective rights and obligations o f the Parties under Sections 2.5, 3.4, 4.6, 5, 6, 7 , 9 and 10 shall survive the expiration or termination of this Agreement regardless of when such termination becomes effective.
10.5 Amendment. No change or modification of this Agreement shall be valid unless in writing and signed by all Parties to this Agreement ; provided, however, an Attachment can be updated through written confirmation of such terms through written or electronic correspondence.
Attachment B
10 10.6 Notice. Any notice or demand which is required or provided to be given under this Agreement shall be deemed to have been sufficiently given and received for all purposes when delivered by hand, confirmed facsimile transmission, or nationally recognized overnight courier, or five days after being sent by certified or registered mail, postage and charges prepaid, return receipt requested, to the addresses set forth in the opening paragraph with “Attn: President”. Each Party may modify its notice address or “Attn:” Party by providing written notice in the manner described in this Section 10.6.
10.7 Assignment. Neither Party may assign this Agreement, or any of its interest herein, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that no such prior approval shall be required for an assignment in connection with a sale of all or substantially all of a Party’s business related to the subject matter of this Agreement or any merger, sale of a controlling interest or other change of control of such Party. This Agreement shall apply to and bind the successors and permitted assigns of the Parties.
10.8 Force Majeure. Neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, telecommunications delays, failure of electrical power, lightning, national emergency, war, action of court or public authority, terrorist act, military action, civil disturbance, internet outages, failures or delay in transportation or communications. The Parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement.
10.9 Waiver. The waiver by either Party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof.
10.10 Insurance. Genfare shall maintain insurance coverage consistent with it s existing programs and the requirements of any applicable law. Further, Genfare shall include Customer as an additional insured on its Commercial General Liability Policy pursuant to Genfare’s standard endorsement.
10.11 Severability. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms. With respect to any unenforceable provision, the applicable arbitrator or court shall deem the provision modified to the extent necessary, in such adjudicator’s opinion, to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties set forth herein.
10.12 Entire Agreement . This Agreement supersedes all previous discussions, negotiations, understandings and agreements between the Parties with respect to its subject matter, and constitutes the entire Agreement between the Parties. This Agreement is a collaborative drafting effort and the provisions of the Agreement shall not be construed against a Party as the purported drafter. This Agreement may be executed in one or more counterparts, with signatures delivered by fax or emailed PDF documents, all of which counterparts when taken together shall comprise one instrument.
Attachment B
11 10.13 Interpretation. This Agreement and its Attachments shall be interpreted in accordance with the laws of the State of California.
10.14 Jurisdiction and venue of all disputes over the terms of this Agreement and its Attachments shall be in the State of California.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above.
GENFARE CITY OF SANTA MARIA, a California
Municipal Corporation
By: ____________________________ By: ______________________________
Name: Eric Kaled___________________ Name: ______________________________
Title: President_____________________ Title: ______________________________
Date: ______________________________ Date: ______________________________
Attachment B
12 GENFARE LINK SERVICES ATTACHMENT
SaaS Services Genfare Link, applicable modules are checked:
☒ Admin Link
☒ Report Link
☒ Fare Link
☒ Customer Care Link
☒ Inventory Link
☒ Asset Link (requires latest generation Genfare hardware) ☒ Card Check
☒ Invoice
☒ Real Time Link (requires latest generation Genfare hardware) ☒ Account Based (additional fee)
☒ Open Payment (additional fee)
☒ e-Fare (additional fee)
☒ Organizations / Affiliated users (additional fee)
Implementation Fee $ 164,700 payable as follows: 50% upon signing this Agreement and 50% at user acceptance testing (UAT).
Annual Subscription Fees
$32,940 Year 1
$33,928 Year 2
$34,946 Year 3
Software Support Fees
$12,250 Year 1
$12,617 Year 2
$12,996 Year 3
Software Provided Not applicable
Software License Fee Not applicable
Payment Terms Implementation Fee will be payable within thirty (30) days of execution of this Agreement.
Annual subscription fees will be paid prior to the beginning of each subscription year.
Annual Software Support fees will be paid prior to the beginning of each subscription year.
Software License Fee shall be paid prior to the Software being delivered to Customer.
Subscription Start Date The date Genfare makes the Services available for user acceptance testing.
Initial Subscription Term 3 years from Subscription Start Date Contracted Number of Affiliated
Users, not to exceed 25
Affiliated Users List to be provided at a later date (if applicable)
Attachment B
13 PAYMENT PROCESSING SERVICES ATTACHMENT
Payment Processing Services ☐ e-Fare processing services ☐ Mobile ticketing processing services
☐ Administrative Point-of-Sale (APOS) processing services ☐ Ticket Vending Machine (TVM) processing services
☒ Farebox processing services
☐ Validator processing services
Open Payment Implementation
fee No fee
Subscription Term Customer’s subscription to the Payment Processing Services listed above and further described in Exhibit B shall run concurrently with customer Term for the respective services identified on the Genfare Link Services as described in the above Attachments and in the Agreement.
Subscription Fee No fee
Transaction Fees Transaction fees as follows:
$0.05 + 5.5% of each transaction processed through the SaaS Services.
Payment Terms Implementation Fee will be payable within thirty (30) days of execution of this Agreement.
Annual subscription fees will be paid prior to the beginning of each subscription year.
Transaction Fees are payable in accordance with the terms of the Agreement.
Payment Processor Chase Paymentech, processor provided by Genfare and subject to change.
Attachment B
14 EXHIBIT A
Service Level Agreement
1. Scope of Work
Support Levels Gold
Portal Licenses 6 users
Access Knowledge Base, Case Management, Assets and Training Support Hours 24/7
Email and Phone Support Included
Online Training Up to 6 users
Software Updates Included
Fare Structure* 1 per year
3-Day System Review** Not included
Managed Service Not included
*Fare structure changes require a minimum of six (6) weeks’ notice with the fare structure checklist completed and provided to Genfare’s team. Requests where Genfare receives less than
2. Definitions
“Error” means any situation where the Services or the Software (a) does not operate in accordance with the Documentation; and/or (b) does not produce correct results; and/or (c) encounters any other problems or issues set out in the chart in Section 6.4 of this Exhibit.
“Resolution” or “Resolve” refers to actions taken to correct or provide a reasonable work-around for a reported issue by delivering new code or otherwise restoring the Services to a functional state. In the case of a work-around as a solution, Genfare shall continue working to more permanently resolve the Error until such Error is fully resolved.
“Standard Service Hours” are defined as Monday through Friday beginning at 8:00am and ending at 5:30pm Central Time, excluding federal, Customer, and Genfare holidays.
The Holiday List is updated annually and can be found on the Customer Portal within the knowledge base searchable by: Genfare Holidays.
“Telephone Support” means an oral responses, "Email Support" means an electronic response, and "Customer Portal" means and electronic response by Genfare's Customer Care Representatives and Technicians to questions regarding (a) the functions of the Services, (b) the steps for Customer to follow in operating the Services, (c) the proper format for the input of Customer’s data or information, (d) steps to improve the efficiency of operation of the Services, (e) the interface of the Services, and any related system in Customer’s current technical environment, (f) the interface of the Services and other software, (g) the Documentation relating to the Services, and/or (h) changes to the operation of the Services due to the provision of a maintenance and/or support service to Customer.
3. SaaS or Software patches and upgrades
3.1 Genfare shall (i) develop, test, provide and/or implement all applicable “patches” or updates that become necessary to remedy the Errors in the Services or the Software and Attachment B
15 (ii) provide all version updates, software patches and error corrections necessary for the Services and the Software to maintain functionality.
3.2 All SaaS/Software updates and/or upgrades are based on the minimum hardware requirements needed for such update and/or upgrade.
3.3 Genfare strongly recommends the customer utilize a test environment for all software updates. Customer is agreeing to assume all risk and liability associated with accepting an update in their production environment.
3.4 Applicable Software updates will be made available to Customers as they are released.
Customer’s involvement may be required as Genfare may need access to certain Customer equipment or systems to effectuate updates.
3.5 For Errors in the Software, prior to implementing any patches or upgrades, Genfare shall first notify Customer’s IT department in advance to schedule a time and date for the installation. Depending on the scope of the change, Customer may wish to back-up their Services prior to the software upgrade.
3.6 Genfare Support includes new features in modules subscribed to by the Customer, but does not include modules not subscribed to or new modules developed by Genfare.
4. Exceptions
4.1 The provisions of this Exhibit A shall not apply to issues arising from:
(a) the negligence of Customer, its customers, employees, or representatives, (b) any loss or damage resulting from a force majeure event (as set forth in Section
10.8 of this Agreement),
(c) alteration, misuse, or abuse of the Services or Software, (d) use of the Services or Software contrary to the terms of this Agreement, or the instructions in any Documentation provided to the Customer, (e) the combination of the Services or Software with any third party hardware or software not expressly recommended or approved by Genfare, (f) any improper installation, operation or maintenance of the Services or Software by the Customer or a third party, including use of non-OEM parts in the Services and a Customer’s failure to promptly install all patches, error corrections and updates provided by Genfare,
(g) Customer’s failure to report a known Error in a timely manner (no more than seven (7) business days from identification of such Error), or (h) a Genfare-supplied hardware failure (except to the extent that such hardware is under warranty).
4.2 Genfare will not provide Support or any associated services for the Customer’s Oracle database environment. Oracle database adjustments, enhancements and/or recommendations will be communicated and passed to Customer for implementation.
Genfare is not responsible for executing updates to maintenance for the Customer’s network manager/Oracle database virtual environments, operating systems, database version, database allocation or similar Customer-provided resources.
5. Genfare and Customer Duties
Although Genfare shall be responsible for the Support, Customer shall be the Party that initially responds to all Errors. Genfare agrees to assist the Customer, as required and contracted by the Customer.
5.1 Genfare SHALL:
Attachment B
16 (a) Provide remote support for the Services and Software, as required by this Agreement;
(b) Respond to and Resolve any Errors in accordance with the chart in Section 6.4; (c) Perform the Support in a competent manner by qualified personnel; (d) Ensure that the Services or Software will operate and function with updates, upgrades, modifications or fixes, that are provided by Genfare, including without limitation, software patches or bug fixes;
(e) Ensure that Genfare personnel or contractors are available to carry out the obligations of Genfare hereunder;
(f) Provide contact information for Genfare personnel, available to receive notices of Errors under Section 7.2 of this Exhibit; and
(g) Notify Customer of any identified indication of deliberate tampering or patterns of damage not consistent with normal usage.
5.2 Genfare SHALL NOT:
(a) Be responsible for any malfunction of Equipment, servers, computer equipment, communications infrastructure, cabling, networking capability or any other element or Errors that are not attributable to the Services or Software; or (b) Pay any claim pertaining to work done by or on behalf of Customer for removing modules or Equipment to be shipped to Genfare for repair.
5.3 Customer SHALL:
(a) Provide any information reasonably requested by Genfare to understand and describe an Error in order to allow Genfare to carry out its duties hereunder; (b) Provide any access to Equipment or systems as reasonably requested by Genfare to provide patches or updates to Software;
(c) Perform all preventative maintenance of Software and Equipment according to the Documentation; if asked, Customer must provide a history of preventative maintenance and support of the system as part of the terms of keeping the full fare collection system in good working order.
(d) Be entitled to use any third party to carry out all or part of the hardware maintenance of the Services, or to carry out such maintenance itself (Genfare shall have no obligation to correct Errors attributable to such third-party or self- performed maintenance under this Exhibit A);
(e) Make all requests for support through a Customer’s representative, or Customer’s representative’s substitute(s) or designee(s);
(f) Provide appropriate personnel and support as is necessary for Genfare personnel to perform their duties, such as IT technical support, communications support, revenue service support and security personnel, flaggers and other proper personnel;
(g) Inform Genfare of all Customer operating and security policies established for the safe, secure and proper interaction with the Services; (h) Be responsible for freight charges to Genfare, located in Elk Grove Village, IL, and all costs, expenses related thereto;
(i) Be responsible for any Genfare travel expenses for on-site support; (j) Promptly notify Genfare when any change is made to the Services; and (k) Promptly (no later than 10 business days after receipt) install all patches, error corrections and updates provided by Genfare.
(l) Customer shall provide the first level of support to its employees, staff, agents, contractors, riders or its Client’s riders using Mobile Link.
Attachment B
17 (m) Customer shall reconcile all reports on a monthly basis and notify Genfare of any discrepancies within thirty (30) days. Genfare shall not be liable for any amounts reported as a discrepancy if Customer does not reconcile on a monthly basis.
6. Support Response Time and Availability
6.1 Response Time.
Genfare shall make available an adequate number of personnel to ensure that the requirements hereunder, including, without limitation, all response times as described under Section 6.4, are met.
6.2 Initial Response.
Genfare shall provide an initial response (the “Initial Response”) in accordance with Section
6.4 below. As part of the Initial Response Genfare shall:
(a) Request access to the Services or any part thereof, other than to the actual TVM itself, in order to determine the nature of the reported Error. Genfare access must be coordinated through the primary Customer representative or his/her designate.
Access will only be provided upon request and will be terminated upon Resolution of the Error. During said access, Genfare agrees to observation by Customer staff.
(b) Determine the cause of the Error and the solution to the Error. (c) Provide Customer with an estimate of the time required to correct the reported Error in accordance with Section 6.4 below.
6.3 Support Availability. Telephone Support shall be available 24/7 via Genfare’s support telephone numbers. Customer Portal Support is available 24/7 for P2 and P3 Severity Issues. All P1 calls need to be directed a live person based on the time of day listed below
(a) Main Hour Support: 847.871.1231 – 8:00am to 5:30pm CST After Hour Support: 844.287.5234 – 5:31pm to 7:59am CST (b) Customer Portal: https://genfare-community.force.com/customer/ or at www.genfare.com on the home page top right corner.
6.4 Support Response Time and Availability.
Issue Severity
24/7 Support Breakdown
Severity/Impact Description Acknowledgement
Goal
Response
Time Goal
Resolution
Goal
P1
System Down – Critical
production issue affecting
ability to collect fares,
including system
unavailability, with no
workaround available
Less than 30
minutes, 24/7
Less than 3
hours, 24/7 24 hours
P2
Major – Production issue
impacting data integrity, loss of
functionality and/or
significantly degraded
performance, issue is persistent
Less than 30
minutes, 24/7
Less than 4
hours,
during main
business
hours
24 hours,
during main
business
hours
Attachment B
18 with no workaround available
P3
Minor – Any system issue that
affects functionality or impacts
performance, workaround may
be possible but not sustainable
Less than 30
minutes, 24/7
Less than
24 hours,
during main
business
hours
20 days
ALL RESPONSE TIMES CONTAINED IN THIS AGREEMENT ARE CALCULATED FROM THE TIME CUSTOMER MAKES AN INITIAL CALL FOR ERROR RESOLUTION. RESOLUTION
TIMES ARE DEPENDENT UPON ACCESSIBILITY TO THE APPLICABLE SYSTEMS AS
GRANTED BY THE CUSTOMER AND THE TIME PERIOD FOR DETERMINING RESOLUTION
SHALL NOT BEGIN UNTIL CUSTOMER HAS PROVIDED GENFARE ALL REQUIRED ACCESS TO ITS SYSTEMS, IF REQUIRED.
7. Customer Assets
PRODUCT QTY DATE
Odyssey Farebox 24 2011-2021
Network Manager 1 2017
VIP Data System 1 2015
Ticket Vending Machine 3 2 2015
As a part of the support package, Genfare and Customer will review each of the products that make up Customer’s current fare collection solution. This will include Customer’s current software, hardware, and any integrations integral to Customer’s fare collection solution so these can be referenced within the Customer Portal.
8. Help Desk Services
Genfare will provide Help Desk Services to assist Customer with use of the Services and assistance in resolving problems encountered by Customer.
8.1 Help Desk Services
(a) Contacting the Help Desk
(i) Customer Portal (all users must be registered to access the Customer Portal): https://genfare-community.force.com/customer/
(ii) Email: [email protected]
(iii) Phone:
(A) Main Hour Support: 847.871.1231 – 8:00am to 5:30pm CST (B) After Hour Support: 844.287.5234 – 5:31pm to 7:59am CST
(b) Ticketing Procedures
(i) Each inquiry will be documented, assigned a ticket number and a confirmation email will be sent to the originator to confirm the request has been received.
Attachment B
19 (ii) Each ticket will be assigned to a technical support engineer to follow up and resolve each issue.
(iii) A technical support engineer will make contact according to the contact information within the ticket to work on the ticket, or to schedule a time to work on the ticket.
8.2 Communications protocol
(a) In order to connect to the Customer’s system and Resolve Errors in the Services or Software, Genfare must be able to reach the Customer Representative (or delegate), or Genfare will be unable to connect to the system to identify the root cause of, and subsequently Resolve, the reported Error. (b) Genfare may use the following tools to remotely access the Customer system:
(i) LogMeIn Rescue/Pro (default and preferred option)
(ii) TeamViewer
(iii) VPN (Cisco or Junos)
8.3 Customer Portal
(a) Customer may purchase additional Customer Portal licenses for access to the customer portal and digital training, such licenses are available at a rate of $900/per user per year. Additional licenses will be prorated at the time of addition and will be updated annually.
(b) Customer Portal licenses are available for a single user and cannot be assigned to shared email addresses.
(c) Customer may change Customer’s users listed below once per year, upon applicable contract renewals, or upon an employee leaving the Customer’s employ.
(d) Genfare reserves the right to audit Customer’s Customer Portal licenses and use of such licenses and may remove any registered Customer Portal user for inactivity. If Genfare removes a registered Customer Portal user for inactivity, Customer may not re-fill that Customer Portal License until the removed Customer Portal license would have been eligible to be changed as specified in
7.3(c) above.
(e) Initial Customer Portal License Users
Up to 9 for Platinum contacts are allowed for portal access. If you go over the set number of contacts, each additional contact is $900 and is added to the base of the contract. Contacts can be added anytime as we will pro-rate the license.
# Contact Name Title Email Phone
1 2
3 4
5 6
Attachment B
20 EXHIBIT B
PAYMENT PROCESSING SERVICES AGREEMENT
Pursuant to the Genfare Link Services Attachment, Customer elects through one of Genfare’s third- party service providers the following services which may include one or more of (a) the processing of credit card, prepaid card and debit card (each a “Card”) payments and related services (“Processing Services”); or the transport and reporting of certain data over certain wireless and other carrier networks to and from various credit and debit card payment processors (the “Gateway Services”) (individually, and collectively referred to as “Payment Processing Services).
Genfare and Customer agree that the following terms and conditions shall govern Customer’s rights and obligations with respect to any Payment Processing Services provided by Genfare:
1. Definitions.
1.1 “Genfare Products” shall mean the Equipment, Services and/or Software as purchased, licensed and/or used by the Customer.
1.2 “Laws” mean any state, federal, or local laws, rules, or regulations applicable to Customer.
1.3 “Limited Acceptance Options” means either (i) all Visa and MasterCard consumer credit cards and Visa and MasterCard commercial credit and debit cards; or (ii) Visa and MasterCard debit cards only (excluding credit cards).
1.4 “Merchant Settlement Account” means at least one bank account owned by Customer for the deposit and settlement of funds arising from the Payment Processing Services.
1.5 “Payment Brand ” means any payment method provider whose payment method is accepted by Paymentech for processing, including, without limitation, Visa Inc., MasterCard International, Inc., Discover Financial Services, LLC, and other credit and debit card providers, debit network providers, gift card, and other stored value and loyalty program providers. Payment Brand also includes the Payment Card Industry Security Standards Council.
1.6 “Payment Brand Marks” means the brands, emblems, trademarks, and logos that identify a Payment Brand.
1.7 “Payment Brand Rules” means all published bylaws, rules, programs, and regulations, as they exist from time to time, of the Payment Brands.
1.8 “Payment Instrument ” means an account, or evidence of an account, authorized and established between a Customer and a Payment Brand, or representatives or members of a Payment Brand, that are accepted from Customers as payment for a good or service.
Payment Instruments include, but are not limited to, credit and debit cards, stored value cards, loyalty cards, electronic gift cards, authorized account or access numbers, p aper certificates, and credit accounts.
Attachment B
21 1.9 “Payment Instrument Information ” means information related to a Customer or the Customer’s Payment Instrument that is obtained from the Customer's Payment Instrument or from the Customer’s use of a Payment Instrument (e.g., a security code, a PIN number, credit limits, account balances, or the customer's zip code when provided as part of an address verification system). Without limiting the foregoing, such information may include a the Payment Instrument account numb er and expiration date, the Customer’s name or date of birth, PIN data, security code data (such as CVV2 and CVC2), and any data read, scanned, imprinted, or otherwise obtained from the Payment Instrument, whether printed thereon, or magnetically, electron ically, or otherwise stored thereon. For the avoidance of doubt, the data elements that constitute Payment Instrument Information shall be treated according to their corresponding meanings as “cardholder data” and “sensitive authentication data” as such terms are used in the then current PCI DSS.
1.10 “Payment Network” means a Card brand (e.g., Visa, MasterCard, Discover or other card brand).
1.11 “Payment Network Rules” means the then-current Payment Network operating rules and regulations.
1.12 “Purchaser” means the person or entity to whom a Payment Instrument is issued or who is otherwise authorized to use a Payment Instrument.
1.13 “Retrieval Request” means a request for information by a Customer or Payment Brand relating to a claim or complaint concerning a Transaction.
1.14 “Security Standards ” are all rules, regulations, standards or guidelines adopted or required by the Payment Brands or the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of C ard Information, including but not limited to the Payment Card Industry Data Security Standards (“PCI DSS”), Visa’s Cardholder Information Security Program (“CISP”), Discover’s Information Security & Compliance Program, American Express’s Data Security Operating Policy, MasterCard’s Site Data Protection Program (“SDP”), Visa’s Payment Application Best Practices (“PABP”), the Payment Card Industry’s Payment Application Data Security Standard (“PA DSS”), MasterCard’s POS Terminal Security program and the Payment Card Industry PIN Entry Device Standard, in each case as they may be amended from time to time.
1.15 “Transaction” means a transaction conducted between Customer and Purchaser, or Genfare and Purchaser, utilizing a Payment Instrument in which consideration is exchanged (i) between the Customer and Purchaser, or (ii) between Genfare and Purchaser.
Transaction also means the written or electronic record of a Transaction, including, without limitation, an authorization code or settlement record.
1.16 “Transaction Receipt” means an electronic or paper record of a Transaction generated upon completion of a sale or Refund, a copy of which is presented to the Customer.
Attachment B
22 1.17 “Unattended Transactions” means those Transactions where it is not physically possible for the Custom er to examine each Payment Instrument used, such as Transactions at unattended points of sale, on -line, mail, telephone, pre -authorized or recurring Transactions.
2. Services. Genfare will arrange for Customer to receive and use the Payment Processing Servic es through Genfare’s hardware and/or software, will help manage the relationships between Customer and the Genfare’s third -party service providers, and provide limited support as provided herein.
Customer acknowledges and agrees that Genfare is not a bank , a payment gateway or a payment processor, and does not directly provide the Payment Processing Services to Customer but instead facilitates Customer’s receipt of the Payment Processing Services under the terms of this Exhibit B. Customer agrees that Genf are shall be Customer’s exclusive provider of Payment Processing Services for the processing of payments by Purchaser’s and Customer’s use of the Genfare Products during the Term. If permitted pursuant to the Payment Brand Rules, Genfare may charge Purchasers a convenience fee for Purchaser’s use of the Payment Processing Services. Customer acknowledges and agrees that any Transaction made utilizing the Payment Processing Services shall not be submitted on behalf of a third party to the best of Customer’s knowledge. Customer agrees that implementation of any custom interchange rate(s) which Genfare or Customer may have negotiated, or may in the future negotiate, directly with the Payment Networks may require time and development work. For recurring Purchaser Transactions, Customer shall obtain the consent to periodically charge the Purchaser on a recurring basis and retain this permission for the duration of the recurring Transactions in order to provide it to the Payment Brands, the issuing bank of the Purchaser’s Payment Instrument, Genfare, as well as Genfare’s third -party service providers and its affiliates on request.
3. Availability and Support for Payment Processing Services . Customer acknowledges that the Payment Processing Services are provided by third-party service providers and that Genfare makes no representation or warranty that the Payment Processing Services will be meet any availability or performance requirements. Any support offered by Genfare regarding the Payment Processing Services is stri ctly limited to support for such services and will not include any support for Customer’s hardware.
Support for the Payment Processing Services will be provided as follows:
Customer shall be responsible for Tier 1 support to Purchasers.
4. Account Information. Customer hereby authorizes Genfare or its designee to obtain, and grants Genfare the limited power of attorney to obtain information regarding the Account (including, without limitation, account balance and activity at any given time).
5. Compliance. Customer agrees that it shall only access and use the Payment Processing Services via the Genfare Products or as otherwise agreed to in writing between the parties and will use the Payment Processing Services solely in accordance with Required Conditions, Prohibited Businesses, Merchant Categories and Transaction Types set forth in Annex 1 of this Exhibit B. In addition, Customer hereby agrees to comply with (a) all applicable law (including applicable data security and privacy laws); (b) all applicable Pa yment Network Rules; (c) the written agreement between Customer and the third -party service provider providing some or all of the Payment Processing Services (each, a “Payment Services Agreement”); (d) the Payment Brand Rules; (e) the Security Standards; and (g) the policies and procedures of the Processing Services provider or Attachment B
23 the Gateway Service provider that are provided to Customer from time to time regarding Customer’s use of the Processor Services or Gateway Services, respectively.
6. Merchant Payment Processing Instructions and Guidelines. As a condition of Customer’s receipt of the Payment Processing Services, Customer must agree in writing to the Merchant Payment Processing Instructions and Guidelines attached hereto as Annex 2.
7. Fraud Losses, Chargebacks, Refunds, Fines, and Liabilities . Customer acknowledges and agrees that (i) it is solely responsible for all fraud losses it incurs in connection with the Services and that (ii) may be subject to reversals of previously settled Card Transactions (“Ch argebacks”) and to fees, charges, fines, costs, assessments, damages, liabilities, and amounts imposed as a result of its failure to comply with the terms of this Exhibit B, the Agreement, any Payment Network Rules, or any Laws (collectively “Deductions”). If Customer elects to make refunds of Card Transactions, Customer is solely responsible for such amounts and all fees relating thereto, but in no instance will Customer make such refunds by cash or cash equivalents.
8. Data Security . Customer agrees to, a nd to cause third parties acting as Customer’s agent, implement and maintain commercially reasonable data security measures in view of the nature of the data being stored and transmitted, including but not limited to compliance with the Payment Network Rules and all applicable laws, including, without limitation, any and all confidentiality and security requirements of Payment Networks, including but not limited to the Payment Card Industry Data Security Standard. Without limiting the foregoing, Customer ag rees that it is responsible for maintaining the security and integrity of its machines and terminals and will take such measures as are necessary for such protection, including but not limited to compliance with the applicable portions of the Payment Card Industry Security Standards Council (“PCI -SSC”) “Information Supplement: Skimming Prevention - Best Practices for Merchants” (available at www.pcisecuritystandards.org/documents/skimming_prevention_IS.pdf) and Payment Card Industry Unattended Payment Terminal Security Guidelines and such other relevant guidelines and best practices as are published or promulgated by the PCI-SSC or any successor thereto. Customer shall be fully and solely responsible for any damages, fines or fees incurred by Customer, Gateway Service provider, Processing Service provider or other processor retained by Customer, the acquiring bank, or any other party as a result of Customer’s failure to comply with the foregoing or any other terms of this Exhibit B.
9. No License from Genfare. The Gateway Services are licensed by the Gateway Services provider and are not licensed or sublicensed by Genfare.
10. Customer Representations and Warranties.
10.1 Customer represents and warrants that it will comply with all applicable data privacy laws, including the California Consumer Privacy Act if applicable.
10.2 Customer represents and warrants that all information provided in the Application is true and correct in all respects at all times throughout the term of this Exhibit B.
10.3 Customer represents and war rants that it has no knowledge or notice of information that would lead it to believe that the enforceability or collectability of Transactions will in any manner be impaired. Further, Customer has not submitted and will not submit a Transaction that is known or should be known to it to be either fraudulent, illegal, or damaging to any Payment Brand. Genfare may require Customer to provide an updated service application Attachment B
24 (“Application”) at the time of renewal or other term extension or upon Genfare’s request from time to time.
10.4 Customer represents and warrants that it will promptly notify Genfare prior to any change in its legal name, organizational structure, ownership, principals, a change to Customer’s bank account, or the filing of a bankruptcy or similar proceeding by or against it, and any failure to so notify Genfare of such event shall constitute grounds for termination of this Exhibit B or the Agreement. Customer hereby authorizes Genfare (and its designees, which may include Gateway Services provider , Processing Service provider, and the acquiring bank) to obtain credit reports and perform such credit checks on Customer, its principals and affiliates as Genfare or its third -party service provider deems advisable in its sole discretion at any time.
10.5 Customer represents and warrants that its execution of and performance under this Exhibit B (i) in no way breaches, contravenes, violates, or in any manner conflicts with any of its other legal obligations, including its governing documents or any agreement with any third party; and (ii) has been duly authorized by all necessary action and does not require any consent or other action by or in respect of any third party. Customer agrees that authorization of a Transaction indicates that the Payment Instrument (i) contains a valid account number and (ii) has an available credit balance to cover the amount of the Transaction.
11. Genfare Warranty and Disclaimer.
11.1 Notwithstanding anything to the contrary contained in the Agreement, Genfare makes no claims or warrant ies with respect to the Processing Services provider, the Processing Services, the Gateway Services provider, or the Gateway Services.
12. Indemnification. In addition to, and not in lieu of Customer’s indemnification obligations contained elsewhere in the Agr eement, Customer agrees that it shall indemnify Genfare against all fees, charges, fines, assessments, costs, damages and liabilities asserted by Gateway Services provider, Processing Service provider, any third-party processor, any acquiring bank, any Payment Network, or any governmental authority arising out of or related to Customer’s use of the Gateway Services, Processing Services or other performance of this Exhibit B, except for any such fees, charges, fines, assessments, costs, damages and liabiliti es caused solely by Genfare’s negligence or intentional misconduct.
13. Survival. The terms of this Exhibit B that expressly or by implication are intended to survive termination shall survive termination of this Exhibit.
14. Conflicts. In the event of a conflict between the terms contained in this Exhibit B, the terms in an Attachment and the Agreement, the order of precedence is: Attachment, Exhibit B, and then the main body of the Agreement.
Attachment B
25 ANNEX 1
Required Conditions, Prohibited Businesses, Merchant Categories and Transaction Types (For Customer information use only)
A. Required Conditions: Customer represents and warrants that it shall:
Accept all categories of Visa and MasterCard Payment Instruments (i.e. debit and credit cards) unless the customer has previously, through written notice, indicated election of one of the Limited Acceptance Options, as well as all foreign bank-issued Visa or MasterCard Payment Instruments; o If a Limited Acceptance Option is selected by Customer, then the Customer must disp lay appropriate signage to indicate the details of the applicable Limited Acceptance Option Not engage in any practice that unfavorably discriminates against or provides unequal treatment of any Payment Brand relative to any other Payment Brand;
Not set a dollar amount above or below which it refuses to honor otherwise valid Payment Instruments during the Subscription Term;
Physically examine each Payment Instrument used at those attended points of sale to determine that the Payment Instrument presented is valid and has not expired; Notify Genfare, and to the extent possible its third -party service providers, of the intent to conduct Unattended Transactions;
Ensure that there are appropriate procedures in place to confirm that each Unattended Transaction is made by the intended Purchaser;
Not split a single Transaction into two or more Transactions to avoid or circumvent authorization limits or monitoring programs;
Not accept Payment Instruments for the purchase of scrip; Not require a Purchaser to complete a postcard or similar device that includes a Purchaser’s Payment Instrument information;
Not disburse or advance any cash to the Purchaser, itself, its representatives, agents or employees in connection with a Transaction
Not accept payment for effecting credits to a Purchaser; Not make or have previously made a representation or agreement for the issuance of refunds except as stated in all applicable refund policies that have been published to Genfare and all Purchasers; Not accept or facilitate the acceptance of Payment Instruments in connection with installment plans; Execute any and all applications and documentation required by the Payment Brands and Genfare’s third-party service providers and its affiliates;
Not operate a Prohibited Business, nor fall w ithin the Prohibited Merchant Category, nor submit a Prohibited Transaction, as these terms are defined in Annex 1 attached hereto; Maintain a refund policy and disclose such refund policy to Genfare, its third -party service providers, and Purchasers;
Submit any change of its refund policy 14 days prior to the effective date of such change to Genfare and its third-party service providers;
Prepare and deliver to Genfare and its relevant third -party service providers, Transactions reflecting any refund within 3 days of the Customer or Genfare approving such a refund; Not accept any payment from a Purchaser as consideration for issuing a refund; For recurring Transactions of a Purchaser, obtain the consent to periodically charge the Purchaser on a recurring basis and retain this permission for the duration of the recurring Transactions in order to provide it to the Payment Brands, the issuing bank of the Purchaser’s Payment Instrument, Genfare, as well as Genfare’s third-party service providers and its affiliates on request; Attachment B
26 Retain written documentation specifying the frequency of any recurring charges to a Purchaser and the duration of time during which such charges may be made; Not submit any recurring transaction after receiving a cancellation notice from a Purchaser or a notice from Genfare, its third -party service providers or any Payment Brand that a Purchaser’s Payment Instrument is not to be honored;
Offer Purchasers a data protection method such a 3-D Secure or Secure Sockets Layer (SSL); Maintain their respective Merchant Settlement Accounts for as long as they receive Payment Processing Services;
Notify Genfare and its third-party service providers with no less than 5 days prior notice of an intent to close their respective Merchant Settlement Accounts
Substitute another Merchant Settlement Account subsequent to the closure of any prior Merchant Settlement Account;
Obtain an authorization code through a Genfare’s third-party service provider for each Transaction; Have a valid agreement in effect with any applicable Payment Brand; Store and retain Transactions and Transaction Receipts in compliance with the Payment Brand Rules; If applicable, send Genfare and Genfare’s relevant third -party service provider, via certified or overnight mail or confirmed fax, a written resolution of the investigation of a Retrieval Request, along with legible copies of any supporting documentation requested or required by the Retrieval Request; Exercise reasonable care to prevent disclosure or use of Payment Instrument Information; Not using Payment Brand Marks, other than as expressly authorized by the Payment Brands; and Use the Payment Brand Marks only to promote the services covered by the Payment Brank Marks by using them on decals, indoor and outdoor signs, advertising ma terials, and marketing materials, provided that all such uses are consistent with the Payment Brand Rules.
B. Prohibited Businesses and Business Activities:
Adult-oriented products or services (of any media type, including Internet, telephone, printed material, etc.)
Buyers clubs / Membership clubs
Collection agencies engaged in the collection of Uncollectible Debt (as defined by the Payment Brands) Bankruptcy attorneys
Credit repair agencies
Sports forecasting or odds making
Credit counseling or credit repair services
Credit protection / Identity theft protection
Direct marketing—subscription merchants
Infomercial merchants
Internet/MOTO pharmacies
Internet/MOTO pharmacy referral sites
Internet/MOTO Firearm or Weapon Sales
Internet/MOTO Tobacco Sales
Drug Paraphernalia
Occult Materials
Multi-level marketing businesses
Inbound telemarketers
Outbound telemarketers
Prepaid phone cards
Prepaid phone services
Rebate-based businesses
Attachment B
27 “Up-Sell” merchants
Bill payments
Escort services
Gambling or betting, including lottery tickets, raffles, casino gaming chips, off -track betting, and wagers at race tracks
Financial Institutions — Manual Cash Disbursements
Financial Institutions — Automated Cash Disbursements Financial Institutions — Merchandise and Services
Non-Financial Institutions — Money Orders, Foreign Currency, etc. Wire Transfer Money Orders
High-Risk Merchants
High-Risk Telemarketing Merchants
Service Station Merchants
Automated Fuel Dispensers (AFD)
Any business model heavily reliant upon or solely or primarily based on any guaranteed “rebate”, “refund”, or “prize” associated with the sale of products or services C. Prohibited Merchant Categories:
Merchants domiciled, residing, or having a principal place of business outside of the U.S. Merchants engaged in any illegal activity, or any activity reasonably likely to create notoriety, cause harm or damage the reputation of Paymentech, Member or any Payment Brands Merchants listed on the VISA Terminated Merchant File, MasterCard MATCH, or any similar Payment Brand list
D. Prohibited Transaction types:
Account Funding Transactions
Dynamic Currency Conversion
Quasi-Cash Transactions
Purchase of a Scrip
28 DocID: 4810-4174-8398.2
ANNEX 2
MERCHANT PAYMENT PROCESSING INSTRUCTIONS AND GUIDELINES (For Customer information use only)
[Attached Separately]