Contract No. 4387 (CCS)
CONTRACTUAL SERVICES AGREEMENT
This Contractual Services Agreement ("Contract"), entered into this _j_~~- day of September, 2017 ("Execution Date"), by and between the CITY OF SANTA MONICA, a municipal corporation ("City"), and PAYMENT EXPRESS, INC. ("PX"), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the_ statutes of the State of California and the Charter of the City.
B. PAYMENT EXPRESS, INC. (PX) is qualified to do business, and is doing business, in the State of California. PAYMENT EXPRESS, INC. (PX) represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Contract.
C. The City and PAYMENT EXPRESS, INC. (PX) desire to enter into an agreement for PAYMENT EXPRESS, INC. (PX) to provide contractual services to the City as set forth herein, upon the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates on December 31, 2017, unless sooner terminated in accordance with Section 14.
2. PAYMENT EXPRESS, INC. (PX) Services. PAYMENT EXPRESS, INC. (PX) will perform all of the services ("Services") described in Exhibit A, Scope of Services.
PAYMENT EXPRESS, INC. (PX) will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to PAYMENT EXPRESS, INC. (PX) any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by PAYMENT EXPRESS, INC. (PX).
4. Compensation. The City will compensate PAYMENT EXPRESS, INC. (PX for the Services performed in an amount not to exceed $20,000, as set forth in Exhibit B.
5. Invoices. PAYMENT EXPRESS, INC. (PX) will invoice the City for the Services in accordance with Exhibit Band the City will pay any undisputed amount within 30 - 1 - January 2017
days of receipt. All invoices must be received by the City of Santa Monica with all applicable back up documentation.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Parking Operations Division
City of Santa Monica
1717 4th Street Suite 150
Santa Monica, California 90401
Attention: Henry Servin, Parking & Traffic Manager
Re: Contract No. 4387
with a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. 4387
6.2 All notices, demands, requests or approvals to PAYMENT EXPRESS, INC. (PX):
PAYMENT EXPRESS, INC. (PX)
8939 S. Sepulveda Blvd, Suite 520
Los Angeles, California 90045
Attention: Latanya Quince
Re: Contract No. 4387
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of PAYMENT EXPRESS, INC. (PX) or any of PAYMENT EXPRESS, INC. (PX) agents, employees, or subconsultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement, including the attached Payment Express Terms and Conditions (Exhibit D), represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement. This Agreement may be modified only by written agreement signed by City and PAYMENT EXPRESS, INC. (PX), and approved as to form by the City Attorney. - 2 - January 2017
9. Insurance. Prior to commencing work, PAYMENT EXPRESS, INC. (PX) must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by PAYMENT EXPRESS, INC. (PX) or PAYMENT EXPRESS, INC. (PX) agents, representatives, employees or subconsultants for the duration of this Agreement. PAYMENT EXPRESS, INC. (PX) must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 PAYMENT EXPRESS, INC. (PX) agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, "City") from and against any and all liability, claims, demands, damages, or costs resulting from a third party claim that PAYMENT EXPRESS, INC. (PX) violated such third party's intellectual property rights.
City must promptly notify PAYMENT EXPRESS, INC. (PX) of any claim or potential claim that may be made under Section 10.1 of this Agreement. If City makes a claim for indemnification under this Section 10.1 of this Agreement, PAYMENT EXPRESS, INC. (PX) will have sole authority to defend and settle such claim with relation to any third party. (collectively, "Losses").
10.2 Enforcement Costs. PAYMENT EXPRESS, INC. (PX) agrees to pay any and all reasonable costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1, subject to the limitations on liability put forth in Exhibit D of this Agreement.
11. Prohibition against Transfers.
11.1 · PAYMENT EXPRESS, INC. (PX) may assign or transfer this Agreement to an affiliated entity, parent, or successor by merger without the permission of City.
Otherwise, PAYMENT EXPRESS, INC. (PX) may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, such consent not to be unreasonably withheld. Any attempt to do so without the City's consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of PAYMENT EXPRESS, INC. (PX or of any general partner or joint venturer or syndicate member of PAYMENT EXPRESS, INC. (PX, if a partnership or joint venture or syndicate exists, which results in changing the control of PAYMENT EXPRESS, INC. (PX), will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
- 3 - January 2017
12. Permits and Licenses. PAYMENT EXPRESS, INC. (PX), at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If PAYMENT EXPRESS, INC. (PX) fails or refuses to perform any material provisions of this Agreement, and if the default is not cured within a period of five days after the City's written notice of default specifying the nature of the default, City may terminate this Agreement by 30 days' written notice to PAYMENT EXPRESS, INC. (PX).
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement during any Renewal Term by giving 30 days' written notice to PAYMENT EXPRESS, INC. (PX). Upon termination of this Agreement, City will pay PAYMENT EXPRESS, INC. (PX) any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. PAYMENT EXPRESS, INC. (PX) must comply with all laws of the State of California and the United States, and all ordinances, rules and regulations enacted or issued by City.
16. Discrimination. PAYMENT EXPRESS, INC. (PX) may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. PAYMENT EXPRESS, INC. (PX) may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18. Records.
18.1 PAYMENT EXPRESS, INC. (PX) must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. PAYMENT EXPRESS, INC. (PX) must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 PAYMENT EXPRESS, INC. (PX) must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles. PAYMENT EXPRESS, INC. (PX) must clearly identify all records and make them readily accessible to the City. At the City's request, PAYMENT EXPRESS, INC. (PX) must provide records in an electronic format -4-
January 2017
and, if necessary, access to any proprietary software to view such electronic records.
18.3 PAYMENT EXPRESS, INC. (PX) must allow the City to have reasonable access to PAYMENT EXPRESS, INC. (PX) books and records and to inspect work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit PAYMENT EXPRESS, INC. (PX) records, and PAYMENTEXPRESS, INC. (PX) agrees to cooperate with any examination or audit of its records.
19. Work Product; Reports.
19.1 This section intentionally left blank.
19.2 At the City's request, PAYMENT EXPRESS, INC. (PX) must furnish reports concerning the status of the Services.
20. Standard of Care. PAYMENT EXPRESS, INC. (PX) agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of PAYMENT EXPRESS, INC. (PX) profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 PX may have subcontractor workers perform parts of the Services, provided such subcontractor employees are vetted per PCI DSS standards, which include a background check.
21.2 PAYMENT EXPRESS, INC. (PX) will be responsible for the quality of any subconsultant's work.
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and PAYMENT EXPRESS, INC. (PX) agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, as appropriate. The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement. -5-
January 2017
25. Exhibits. The following exhibits are incorporated by reference into this Contract as though fully set forth herein. In the event of any conflict between Exhibit D and another agreement document, Exhibit D will control.
Scope of Services
Budget
Insurance Requirements
Exhibit A
Exhibit B
Exhibit C
Exhibit D Payment Express Terms and Conditions
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
~;v1r111tllltn u~
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
LANE DILG
City Attorney
-6-
CITY OF SANTA MONICA,
City Manager
PAYMENT EXPRESS, INC. (PX) By: r ~
Name: {J,t.1;t1r/ /_,,.,,;./p;J
Title: Gc;:rvt~1:'::::: {4V"".:$f; <.....,
January 2017
Exhibit A
Scope of Services
A. Payment Express offers an attended and unattended solutions to provide PCI grade security for merchants accepting physical cards and NFC payments at self service outlets like Parking Payment Terminals. Our gateway authorizes payments and encrypt sensitive information, such as credit card numbers, to ensure that information passes securely between the customer and the merchant
B. PAYMENT EXPRESS, INC. ("PX") will be the gate way provider for all credit card transactions that emanate for the City of Santa Monica Parking and Revenue Control System (SKIDATA) for the following Parking Facilities:
i. Parking Structure 1-9
ii. Ken Edwards Parking Structure
iii. Civic Lot and Civic Structure Parking Facilities
iv. Pier Deck Parking Lot
v. Main Library Parking Structure
For the New SKIDATA Implementation taking card payments requires 3 parties:
The SKIDATA Parking Logic, Point of Sale software, which is integrated with PX equipment and security software and tells PX gateway what to charge.
The payment gateway (Payment Express): Is a level 1 PCI compliant payment gateway. All of the customer credit card information is on our gateway and fully encrypted. Payment Express is responsible for securely processing a customer's card transaction. Payment Express will send it on to the City of Santa Monica preferred merchant provider or banking institution. The credit card authorization information is sent with each transaction record.
The acquiring bank: Responsible for settling the processed transactions into your chosen business bank account(s). Payment Express will nee~ a Merchant ID from an acquiring bank. PX usually request 2-3 business days to test and activate the account.
Summary of Benefits;
• End to end encryption of all data (EMV).
• Reduces Merchant from PCI scope.
• No single point of failure and almost unlimited layers of redundancy including EOV which enables payments to be taken offline. If the internet is down instead of opening the gate and letting cars just leave without processing payment, you will still have limited capability to process payments, when service is restored the files are then uploaded. The amount and size of transactions may be determined by the processing bank, and we can configure our terminals accordingly.
• Designed to combat skimming attacks
• Rapid transaction processing time
• Payment Express has its own configurable EMV kernel ensuring EMV upgrades are able to be achieved easily with a very low cost.
• Software updates and new features are deployed remotely, removing cost and lead time for an onsite technician. This will become more important moving forward as Banks issues a range of Chip cards.
Service access package covers terminal management, support, software updates (delivered over the net), bug fixes, compliance updates, and enhancements, etc. - 8 - January 2017
Fees
Exhibit B
Budget
A. Establishment Fee: $100
B. Monthly Fee: plus applicable tax per calendar month:
a. August 1·31, 2017: $2,500
b. September 1-30, 2017: $2,500
c. October 1-31, 2017:$2,500
d. November 1-30, 2017: $3,000
e. December 1-31, 2017: $3,000
C. Additional Fees: Additional users to the payment manager can be set up, but will incur a one-time fee of $30.00 plus tax. If PX needs to configure or change additional electronic merchant number on the Payment Express Host, there is a fee of $100.00 plus tax per merchant account. In addition. $5.00 per calendar month per connected card reader for SCR200 and IPP350 devices
D. Optional Risk Management Fees
a. Implementation of 1 to 5 applied rules will be charged at $100.00 plus applicable taxes per calendar month.
b. Implementation of 6 to 10 applied rules will be charged at $17 5.00 plus applicable taxes per calendar month.
E. Development Fee (if requested by Customer): $125.00 plus applicable tax per hour per person for testing and $17 5.00 plus applicable tax per hour per person for a senior developer.
F. Total fees shall not exceed $20,000.
Payment Terms
• See section 5
-9-
January 2017
ExhibitC
Insurance Requirements
Contractual Services Agreement Insurance Requirements and Verifications Contractor shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence.
If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Cyber Liability Insurance, with limits not less than 1,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this a~eement and shall include, but not be limited to invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
If the Contractor maintains higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status (CGL): The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Contractor including - 10 - January 2017
materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance at least as broad as Insurance Services Office Form CG 20 10 11 85. b. Primary Coverage (CGL and Auto): For any claims related to this Agreement, the Contractor's insurance shall be primary as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Contractor's insurance and shall not contribute with it. c. Notice of Cancellation (all policies): Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica. d. Waiver of Subrogation (all policies): Contractor hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Contractor may acquire against the City of Santa Monica by virtue of payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City of Santa Monica for all work performed by the Contractor, its employees, agents and subcontractors.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Contractor to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
Contractor shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Contractor's obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Contractor, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at - 11 - January 2017
its sole option, may terminate this Agreement and obtain damages from the Contractor resulting from said breach. Alternatively, the City of Santa Monica may purchase such coverage (but has no special obligation to do so), and without further notice to the Contractor, the City may deduct from sums due to the Contractor any premium costs advanced by the City for such insurance.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers' Compensation insurance coverage is not required if the Contractor does not have employees. The Contractor must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.
- 12 - January 2017
ExhibitD
Payment Express Terms and Conditions
- 13 - January 2017
1. Definitions and Interpretation (Not all defined terms are applicable to all goods and services provided under the Agreement)
1.1 Definitions: In this Agreement, unless the context indicates otherwise:
Acquirer means a bank or any financial institution or a card issuer of financial or non-financial transactions which receives and transmits Transactions via Payment Express;
Agreement means this Agreement, including the Application Form, each of Part A and its Schedule(s) and Part B, and any attachments that may be agreed between the parties, as each may be amended in writing from time to time. For the avoidance of doubt, this Agreement is a fully incorporated part of the Contractual Services Agreement between the City of Santa Monica, a municipal corporation, and Payment Express Inc., a California corporation, and is incorporated therein as Exhibit D of the aforementioned Contractual Services Agreement; Application Form means Customer's on line Payment Express application form submitted to PX via the PX Website. Where no separate Part A is entered into, the Application Form will constitute Part A of this Agreement for the purposes of this Part B; Business Day means any day of the week except Saturday, Sunday or a day on which banks are authorized or required to be closed in California;
Chargeback means the procedure by which a sales record or other indicia of a card transaction (or disputed portion thereof) is denied or returned to Bank or the card issuer after It was entered into the appropriate settlement network for payment, in accordance with the rules of Visa, MasterCard or a similar card association ("Rules'), for failing to comply with the Rules, including, without limitation by reason of card holder disputes, the liability for which is Customer's responsibility and Customer agrees to pay.
Commencement Date means the commencement date recorded in Part A in one or more Schedules; Such Commencement Date may be postponed in writing, at PX's sole discretion, until the date PX receives a copy of the Agreement countersigned by Customer.
Confidential Information means, in relation to either party, any information:
(a) relating to the terms of this Agreement;
(b) relating directly or indirectly to research-or development by, accounting for, or the marketing of, the business of that party or its suppliers or customers;
(c) disclosed by that party to the other party on the express basis that such information is confidential; or (b) which might reasonably be expected by the other party to be confidential in nature; Customer means the customer specified in this Agreement and where applicable includes its employees, contractors and agents.
Default Interest Rate means interest at the rate of 2% above the base lending rate charged by PX's bankers to PX from time to time; Delivery takes place when the Customer receives the Goods from PX, or, in the case of returns, when the Goods arrive at PX's premises; Documentation means any user, training or system manuals for Payment Express (whether in printed or electronic form) which describes and provides guidance on the use of Payment Express (or any aspect of Payment Express); Emergency Support Services means telephone support that PX may provide (but is not obligated to provide unless it agrees to do so in a separate written agreement) for emergency breakdowns resulting in repeated failures in the transmission of Transactions and is available 24 hours a day, seven days a week by calling 310 670 7299 outside of Support Hours. If applicable, PX will use reasonable efforts to respond to any emergency phone call within 30 minutes of receiving the support request; Fees means and includes each of the fees detailed in the Schedule(s) contained in Part A; Goods means the Goods and/or Devices (if any) recorded in Part A in one or more Schedules; Intellectual Property means registered and unregistered trade marks (including logos and trade files), domain names, copyright, patents, petty patents, utility models, registered and unregistered designs, circuit layouts, rights in computer software, databases and lists, Confidential Information, software (whether in object code or source code), and all other rights anywhere in the world resulting from intellectual activity; Payment Express means the Payment Express solution provided by PX for the transmission of data relating to Payment Express Supported Transactions between a Customer and an Acquirer, incorporating the Software and including access (via the internet) to the Payment Express Host and the Support Services;
Payment Express Host means the PX host server known as Payment Express Host to which Customer may be connected using the Software and which is in tum linked to an Acquirer to enable Payment Express Supported Transactions to be processed in real time; Payment Express Supported Transactions means transactions from Customers:
(a) accepting. payment for goods and services by means of credit card, debit card, prepaid card, gift card or any other means of payment which PX agrees to support through Payment Express from time to time; (b) accepting loyalty cards, rewards cards, points cards, discount cards or club cards; or (c) providing services in relation to the sale and use of any of the cards referred to in paragraphs (a) and (b) above including the issue of such cards and the crediting or debiting of value to such cards; Payment Manager means Payment Express Merchant Portal which Customer is able to access by logging onto the PX Website with an assigned usemame and password;
PCI Standards means the Payment Card Industry standards, requirements and guidelines issued by the Payment Card Industry Data Security Council from time to time including the Payment Card Industry Data Security Standard PIN Entry Device requirements and guidelines, and the Payment Application Data Security Standard;
Permitted Use means the transmission to, and receipt from, an Acquirer of data relating to Payment Express Supported Transactions and expressly excludes, without limitation, use for the processing of transactions of, or for the benefit of, any person other than Customer; PX means Payment Express, Inc., a California corporation with offices in Los Angeles, California; PX Logo.means the PX logo supplied (in electronic format) by PX to Customer (as may be updated from time to time by PX); PX Website means the website maintained by PX and accessible by Customer for viewing transactions, data entry, refunding, report generating and other features related to Transactions;
Security Standards means each of:
(a) any data protection or data security standards issued by an Acquirer which receives and accepts Payment Express Supported Transactions from Customer; and
(b) the PCI Standards;
Special Conditions means the special conditions (if any) recorded in Part A in one or more Schedules; Software means the software and other related PX products which:
• form part of Payment Express; and
• is owned or licensed by or developed by, or on behalf of, PX and supplied to Customer, including all upgrades, updates, alterations and modifications and other changes to such software by or on behalf of PX from time to time, but excluding any third party software and firmware forming part of, or supplied with, the Payment Express solution; Support Services means and includes:
(a) Online Help: from time to time PX may display Frequently Asked Questions and Answers on the PX Website; (b) General Support: enquiries may be sent to: [email protected] or made by telephone to 310 670 7299. PX will respond to such enquiries during Support Hours;
Support Hours means the period from 8am to 9pm (PST) on any Business Day and 9am to 5pm (PST) on non-Business Days; Term means the Initial Term recorded in Part A in one or more Schedules and includes any Renewal Terms as recorded in Part A in one or more Schedules and defined in clause 2;
Transaction means a message pair consisting of a message relating to a Payment Express Supported Transaction transmitted by Customer to an Acquirer through Payment Express and a response to that message from the Acquirer to Customer through Payment Express; Tokenized Data means data for which PX has substituted a sensitive data element.with a non-sensitive equivalent that has no extrinsic or exploitable meaning or value.
1.2 Interpretation: In this Agreement, unless the context indicates otherwise:
(a) the singular includes the plural and vice versa;
(b) clause and other headings are for ease of reference only and will not affect this Agreement's interpretation; (c) the term Includes or including (or any similar expression) is deemed to be fallowed by the words without limitation; (d) references to a person include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;
(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and (0 all monetary amounts are stated exclusive of applicable taxes if any and in US dollars (g) in the event of any inconsistency between the terms of any of the following, they will have precedence in the descending order of priority set out below:
2. Term
(i) Part A-Specific Terms and Schedules;
(ii) Part B- General Terms and Conditions;
(iii) The Application Form.
2.1 Section left intentionally blank.
3. Payment
3.1 Fees: Section left intentionally blank.
3.2 Taxes: Customer is responsible for all applicable taxes, duties and levies on the rental, loan or purchase or sale of goods and services (other than PX's income tax) assessed in connection with its use of Payment Express and the provision of services under this Agreement.
To the extent that any Fees paid by Customer under this Agreement exclude any taxes or duties payable in respect of the Goods or Services provided under this Agreement in the jurisdiction where the payment is either made or received, where any such taxes or duties are payable by PX, Customer agrees to pay to PX the amount of such taxes or duties in addition to any Fees owed under this Agreement.
Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to PX with evidence of any such exemption inflirmation, in which case PX will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
3.3 Default Interest for Late Payment: Subject to Part B, clause 3.4(c)(ii), Customer must pay PX interest at the Default Interest Rate on any overdue amounts under this Agreement that are undisputed, calculated daily from the due date until the actual date of payment.
Customer will pay PX all costs and reasonable attorney's fees that PX incurs in attempting to recover or recovering any such overdue amounts, whether or not suit is filed.
3.4 Disputed Invoices: Where Customer has reasonable grounds to dispute any portion of any amount invoiced by PX to Customer under this Agreement (disputed portion):
(a) Customer will notify PX of such dispute and the grounds for such dispute within 14 Business Days of receiving the invoice; (b) any undisputed portion of the invoice will remain payable on the due date for payment; (c) provided that Customer has complied with clause 3.4(a), Customer will not be required to pay:
(i) the disputed portion until the parties' dispute has been resolved by agreement between the parties or in accordance with Part B, clause 19.2; or
(ii) any interest under clause 3.3 on the disputed portion unless the dispute is resolved with the effect that Customer is required to pay all (or part) of the disputed portion, in which case Customer will pay the interest on the disputed portion (or that part of that disputed portion) in accordance with clause 3.3. Interest will be payable from the date that payment would have been due under clause 3.1 but for the dispute until the date that disputed portion is paid to PX in full.
4. Mutual Responsibilities
Each party represents and agrees:
4.1 Power and Authority: that ii has full power and authority necessary to validly enter into and perform all its obligations under this Agreement; and
4.2 Requirements: to comply with the other party's reasonable security, confidentiality and operational requirements of which It has been given reasonable notice. ·
5. Customer Responsibilities
Customer represents and agrees that it
5.1 Suitability: has made, and will continue to make, its own assessment of the suitability, adequacy, compatibility and appropriateness of Payment Express for its purposes;
5.2 Comply with Instructions: will comply with PX's restrictions, instructions and Documentation in relation to the use of Payment Express, including those set out in this Agreement;
5.3 Use by Others: will ensure that only authorized persons use Payment Express and that Payment Express is used only for the Permitted Use and as expressly authorized under this Agreement;
5.4 Responsibility for Use: will accept all responsibility for the reliance on and use of Payment Express by Customer and its employees, contractors and agents;
5.5 Obtain Equipment etc.: will obtain and maintain all equipment, software and services needed to enable it to receive and use Payment Express;
5.6 Accurate Customer Information: warrants that all information provided by Customer to PX in the Application Form is accurate and correct, and that Customer will notify PX in writing if such information changes or ceases to be accurate in any way;
5.7 Provide Sufficient Information: will ensure that sufficient information is given to PX to enable PX to comply with its obligations under this Agreement and that such information is timely, complete and accurate;
5.8 Personal Information: acknowledges that any personal information concerning Customer or its personnel which is provided to PX by or on behalf of Customer may be:
(a) used by PX for the purpose of providing Payment Express, the Support Services and any other services to Customer; and (b) disclosed by PX to its affiliates and other services providers to enable PX to provide Payment Express, the Support Services and any other services to Customer;
5.9 Notify of Third Party Infringement: will immediately notify PX upon becoming aware of any third party infringing PX's Intellectual Property rights in any manner; ·
5.10 Responsible for Connecting to Payment Express Host: is responsible for all charges and costs associated with connecting to the Payment Express Host to operate Payment Express. PX will provide Customer with reasonable technical information and Software necessary to enable Customer to connect to the Payment Express Host;
5.11 Requisite Review of Payline Portal: will review Customer's payline portal, established by PX, with due care on a daily basis for transaction errors. If an error is discovered by Customer, Customer will notify PX in writing within fourteen (14) Business Days of the date such error occurs; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within fourteen (14) Business Days. period. In addition, Customer shall be required to review with due care its bank settlement files on a daily basis to ensure deposits occur without error. If an error is discovered by Customer in the course of such review, Customer will notify PX in writing within fourteen (14) Business Days of the dale of such error occurring; provided that PX will have no liability or obligations of any kind with respect to errors that are not reported to PX within fourteen (14) Business Days. PX's liability under this Section 5.11 (Requisite Review of Payline Portal) of the Agreement is governed by, and fully subject to, the terms of Section 10 of this Agreement.
5.12 Comply with Law Generally: will comply with all relevant laws in its use of Payment Express and carrying out its obligations under this Agreement.
5.13 Improperly Deposited Funds: will return funds that PX deposits in Customer's bank account(s) that do not rightfully belong to Customer ("Improperly Deposited Funds') without offset or delay. Customer will return all Improperly Deposited Funds to PX within thirty (30) calendar days of a written request to do so by PX. If Customer fails to comply with the terms of this Section, PX may immediately suspend services to Customer until Customer returns the lmproper1y Deposited Funds. Customer will be liable to PX for the Improperly Deposited Funds, and all costs (including legal costs on an attorney-client basis) incurred by PX in recovering th~lmproper1y Deposited Funds.
6. PX's General Responsibilities
PX agrees that it will:
6.1 Care and skill: Per section 20 of the Agreement beiween the Parties; and
6.2 Good faith: comply with all relevant laws and co-operate with Customer (and Customer's service providers) in connection with Payment Express.
6.3 No Requirement to Decrypt Tokenized Data: Unless expressly required to do so by law, PX will be under no obligation to decrypt and transmit Tokenized Data to Customer or any third party.
7. PX Warranties
7.1 Security Standards: PX confirms that PX will throughout the term of this Agreement comply with the requirements of the Security Standards.
7.2 Limitations on Warranties: To the fullest extent permitted by law, except as expressly set out in this Agreement, PX disclaims and excludes all warranties, conditions, terms, representations or undertakings, whether express, implied, statutory or otherwise, including any condition or warranty of merchantability or fitness for a particular purpose. PX does not warrant that:
(a) Payment Express, the Goods, the Software or the Documentation will meet Customer's requirements; or (b) Payment Express the Goods, the Software and the Documentation will be uninterrupted or error free, or that all errors will be corrected; or
(c) that the Goods will be free of defects in design, materials or workmanship or will comply with any applicable equipment manufacturer's or software developer's specifications.
Customer understands and acknowledges that an authorization obtained through Payment Express only confirms the availability of the cardholder's credit at the time of the authorization. It does not warrant that the person presenting the card is the rightful cardholder, nor is It an unconditional promise, guarantee or representation by Bank, processor or PX that a transaction is or will be deemed valid and not subject to dispute, debit or chargeback. PX understands and acknowledges that nothing in this Exhibit D shall be interpreted to require Customer to pay for services that do not strictly satisfy the representations, requirements and benefits set forth in the Scope of Services (Exhibit A).
7.3 Supply Warranty: PX warrants that the Goods to be deliv.ered under this Agreement will be free from defects in workmanship (labour and parts included, but transport excluded) during a warranty period commencing on the Commencement Date and conduding twelve (12) calendar months later. As to repaired or exchanged Goods, during the original warranty period here above mentioned, the warranty period on the exchanged or repaired Goods shall expire three (3) months after the date of repair or exchange of such Goods or upon the expiration of the warranty period applicable to the original Goods set forth in this Section. With respect to PX's supply warranty:
(a) Any defective Goods, under warranty, shall be replaced or repaired, free of charge, at PX's discretion (to the exdusion of compensation for any other damage), and the work shall be carried out at PX or its partner's or subcontractor's premises. Customer will pay the costs of transport of the Goods (including insurance) to PX. (b) PX has the choice to repair the Goods with spare parts or new parts. The defective elements, repaired, will become the property of PX.
(c) The lime when the Goods are repaired or unavailable during the warranty period will not give rise to an extension of the warranty period as set forth in this Section, subject to legal mandatory provisions. 7 .4 Exclusions to Supply Warranty: PX will have no liability under the Supply Warranty described in Section 7 .3 in respect of:
(a) Defects, breakdowns, or malfunctions due to failure to properly follow the installation process and instructions for use or an external cause to the Goods (including, but not limited to, shock, lightning fire, vandalism, malicious action, contacts with various liquids or vermin or water damage of any nature, and inappropriate electric voltage); or modifications to the Goods made without the written approval of PX; or a lack of every day maintenance (as described in the Documentation); or a lack of supervision or care; or improper storage or poor environmental conditions, particularly those related to temperature and hygrometry effects of variations of electric voltage from the electric network; or from the earth or repair work; or maintenance of the Goods by persons not authorized by PX;
(b) Damage due to insufficient or bad packaging of the Goods when returned to PX; (c) Wear and tear from normal use of the Goods and accessories; (d) Communication problems related to an unsuitable environment including problems accessing the Internet, transmission faults, local network faults, and modification of the parameters of the relevant cellular network after sale of the Goods. (e) Supply of new versions of Software; ·· (n Malfunction due to the use of products or accessories that are noncompatible with the Goods; (g) Goods returned to PX without PX's prior consent.
8. Intellectual Property
8.1 All Intellectual Property rights in Payment Express, the Goods, the Software, the Documentation and any work or thing developed or created by or on behalf of PX under or in connection with this Agreement (such work or thing being Developed Works), are exclusively owned by PX (or PX's licensors or suppliers). Customer acknowledges that there is no transfer of title, Intellectual Property rights or ownership of:
(a) Payment Express, the Goods, the Software, and the Documentation or any part thereof; or (b) any Developed Works; to Customer under this Agreement and Customer will not dispute PX's (or PX's licensors or suppliers) ownership of the property referred to in this clause 8.
9. Indemnity
This section left intentionally blank.
10. Liability
To the fullest extent permitted by applicable law:
10.1 Remedy: Subject to clauses 10 .2 and 10.3, Custome(s sole and exclusive remedy for breach of any warranty or of any of PX's obligations under this Agreement is (at PX's option) the supply or re-supply of Payment Express, the Goods, the Software, or the Documentation or the refund or waiver of Fees for the relevant part of Payment Express the Goods, the Software, or the Documentation which is the subject matter of, or directly related to, the breach.
10.2 Limitation: In no event will PX's total liability to Customer under this Agreement for any one or more defaults as described in clause 10.1 exceed the amount paid by Customer to PX under this Agreement in the 3 months following execution of this Agreement.
10.3 Exclusion: In no event shall Customer and PX be liable to each other whether in contract, tort (including negligence) or otherwise in respect of any: ·
(a) punitive, incidental, indirect or consequential damages, damages for loss of profits, business interruption, loss of data, loss of goodwill, arising out of, or in connection with, this Agreement, in each case even if such party has been advised of the possibility of such damages; ·
(b) loss, damage, cost or expense suffered or incurred by Customer or PX, to the extent this results from any act or omission by Customer or PX; or
(c) any event described in Part B, clause 14 (Force Majeure). (d) Notwithstanding the terms of this Clause 10.3, nothing herein shall be deemed as a limitation of rights or remedies regarding Customer's liability for violations of PX's Intellectual Property Rights or rights to its Confidential Information.
11. Commercial Purpose
It is expressly acknowledged and agreed by Customer that Payment Express, the Goods, the Software and the Documentation are supplied to Customer for business and commercial purposes ..
12. Termination
12.1 Termination Upon Notice:
(a) PX may terminate this Agreement at any time on not less than 3 months' prior written notice to Customer.
12.2 Termination for Cause: Either party (the First Party) may terminate this Agreement at any time and with immediate effect by written notice to the other party (Second Party) if the Second Party:
(a) is in material breach of any of its obligations under this Agreement, and has failed to remedy the breach within 5 Business Days excluding Customer's -public adopted holidays of receiving written notice from the First Party to remedy the breach; or (b) goes into voluntary or involuntary bankruptcy or liquidation or has a receiver appointed; or (c) is unable to pay its debts as they fall due.
12.3 Breach of License Terms: Without limiting clause 12.2, any use of Payment Express, the Goods, the Software, or the Documentation by Customer for any purpose other than the Permitted Use, or any breach by Customer of the provisions of Part B, clause 16 will be deemed to be a material breach of this Agreement which is not reasonably capable of remedy.
12.4 Consequences: ·
(a) Amounts owing at termination: If this Agreement is terminated by PX for cause prior to the expiry of the Term, Customer must pay the unpaid balance of the Fees due under this Agreement and the cost of PX's reasonable expenses resulting from Customer's breach of this Agreement.
(b) Expiry or termination of this Agreement will not affect the rights or obligations of the parties which have accrued prior to or accrue on termination or which by their nature are intended to survive termination (including Part B, clauses 3, 5(h), 7, 8, 9, 10, this 12.4, 13, 16, 17 and 19, together with those clauses which are incidental to, and required in order to give effect to, those clauses).
13. Confidentiality
13.1 Confidential Information: Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
132
(a) disclose or permit to be disclosed to any person;
(b) use for itself or to the detriment of the other party; any Confidential Information of the other party except as, and then only to the extent:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
required by law;
that the information is already or becomes public knowledge, otherwise than as a result of a breach, by the receiving party, of any provision of this Agreement;
that the information is disclosed to the receiving party, without restriction, by a third party and without any breach of confidentiality by the third party;
that the information is developed independenfly by the receiving party without reliance on any of the Confidential Information of the other party;
authorized in writing by the other party; or
reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information of the other party only to those of its officers, employees or professional advisers on a "need to know' basis, as is reasonably required for the implementation of this Agreement).
PX's Intellectual Property: Customer acknowledges and agrees that the computer programs, computer software, specifications, data, images, designs, codes, and configurations, ("Software") contained in or utilized by the Equipment and PX's network are proprietary and confidential to PX and protected under United States copyright law. Customer shall not copy, modify, adopt, translate, merge, reverse engineer, decompile, or disassemble, the equipment or Software, or create any derivative works based on the Equipment, PX network or Software. Without limiting the effect of clause 13.1 , Customer will treat information about PX's Intellectual Property as the Confidential Information of PX.
14. Force Majeure
14.1 142
14.3 Customer acknowledges that PX relies on third-party providers in the delivery of its services, including, but not limited to, wireless data network providers, cellular radio service provided by third parties that is available only when within the operating range of cellular systems, and cellular service is subject to transmissions limitations and dropped or interrupted transmissions. Cellular service may be temporarily refused, limited, interrupted, or curtailed because of government regulations or orders, atmospheric and/or topographical conditions, and cellular system modifications, repairs, and upgrades. Customer agrees that PX shall not be liable for, and to hold PX harmless for any losses, damages, or business interruptions sustained as a result of interruptions caused by its wireless data network providers or any other third-party provider.
Neither party (the • Affected Party") shall be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, elements of nature or other acts of God; (b) any outbreak or escalation of hostilities, war, riots or civil disorders in any country; (c) any act or omission of the other party or any government authority; (d) any labor disputes (whether or not employees' demands are reasonable or within the party's power to satisfy); or (e) the nonperformance by a third party for any similar cause beyond the reasonable control of such party, including without !imitation, failures or fluctuations in telecommunications or other equipment such as described in clause.
In any such event, the Affected Party shall be excused from any further performance and observance of the obligations so affected only for as long as such circumstances prevail and sucti party continues to use commercially reasonable efforts to recommence performance or observance as soon as practicable, provided that:
(a) Notice: whenever the Affected Party becomes aware that such a result has occurred or is likely to occur, the Affected Party will, as soon as practicable, notify the other party by written notice accordingly; (b) Continued Performance: each party will continue to use commercially reasonable efforts to perform its obligations as required under this Agreement; and
(c) No Deemed Acceptance of Extra Costs: neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure; arid
(d) Charges: this clause 14 will not apply in respect of Custome(s obligation to pay any charges or Fees payable urlder this Agreement.
15. License
15.1 15.2
Grant of License: PX grants to Customer a non-exclusive, non-transferable license to use Payment Express, the Goods, the Software and the Documentation for the Term of this Agreement solely for the Permitted Use. Any other use or dealings with Payment Express, the Goods, the Software or the Documentation without the prior written consent of PX will be a material breach of this Agreement. Except to the extent specifically authorized under this Agreement, Customer must not sub-license, transfer, assign, rent or sell any of Payment Express, the Goods, the Software or the Documentation or the right to use Payment Express, the Goods, the Software or the Documentation.
PX Warranty: PX warrants that PX has the right and authority to grant to Customer the license set out at clause 15.1, in accordance with the terms of this Agreement.
16. Terms of Use
16.1 Adequacy: Customer must satisfy itself as to the adequacy, appropriateness and compatibility of Payment Express and/or the Goods for its requirements. Without limiting the foregoing, Customer acknowledges that it has not relied on any statements or representations on .the part of PX as to performance or functionality, verbal or otherwise, except as expressly recorded in this Agreement.
16.2 PX Logo: If Customer uses a capture method for credit or debit card processing using a system which is not hosted by PX, Customer agrees to display the PX Logo in a readily visible position on the user interface of Customer's system where the credit or debit card data is captured. The PX Logo must not be altered or used for any other purpose without the prior written consent of PX.
16.3 Compliance: If Customer is not compliant with one or more of the Security Standards, Customer must not capture or store any credit or debit card number or expiry date locally on Customer's or a non-compliant third party's system.
16.4 No Right to Copy, Alter or Modify: Customer may make a reasonable number of copies of the Software for backup and disaster recovery purposes only. Except for such back-up copies, Customer must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or modify all or any part of Payment Express, the Goods, the Software or the Documentation by any means or in any form without PX's prior written consent.
16.5 Permitted Use: Customer may not:
(a) use Payment Express, the Goods, the Software or the Documentation for any purpose other than the Permitted Use; or (b) use the Software independently of the other components of Payment Express unless PX has given prior written consent to do so.
If this Agreement is terminated, Customer's right to use Payment Express, the Software and the Documentation will automatically terminate and Customer must immediately remove all copies of the Software from its system(s) and return Payment Express, the Goods, the Software and the Documentation to PX
16.6 Reverse Engineering: Customer must not and must not permit any other person to, reverse assemble or decompile the whole or any part of the Software.
16.7 No Third Party Use: Except as expressly provided for in this Agreement, the Customer must not provide, or otherwise make available, Payment Express the Goods, the Software or the Documentation or any component thereof in any form to any person (a 'Third Party") withoutthe prior written consent of PX. If PX grants such consent, Customer must ensure thatthe Third Party complies with the provisions of clauses 8, 13, 15 and 16 (so far as those provisions relate to Customer) as if the Third Party were a party to this Agreement. Customer will be liable to PX for all acts or omissions of any Third Party in contravention of the provisions of clauses 8, 13, 15 and 16.
16.8 Installation: Customer will be responsible for, and all bear all costs associated with, the installation, operation, maintenance and support of the Goods.
16.9 PX Testing Prior to Launch: Prior to any permitted use of PX products and/or Software by Customer or any third party, PX shall be entitled to test all PX products and Software that Customer purchases, rents, or intends to use for at least seven (7) Business Days ("Prelaunch Testing'). Such Pre-launch Testing shall also entitle PX to at least three (3) Business Days to test transaction processing and settlement
16.10 Labels: Customer will not remove or deface any labels affixed by PX to the Goods. Customer will not affix any label to the Goods.
17. Rental/Loan of Goods
17.1 Where Customer agrees to rent or borrow Goods from PX, the following terms and conditions apply:
(a) Ownership: Legal and beneficial ownership of, and title to, Payment Express, the Goods, the Software and the Documentation remains at all times with PX;
(b) Risk: Customer will bear the risk of, and be responsible for, all loss (including theft) of or damage to, the G_oods from the time that they are first delivered to Customer until the time that they are delivered back to PX; (c) Maintain Goods: Customer must ta_ke reasonable steps to avoid exposure of the Goods to excessive heat, dust and moisture, liquids and electrical and physical shock;
(d) License Terms: Customer must comply with all manufacturer's license terms applicable to the Goods (as supplied with the Goods or otherwise notified by PX to Customer from time to time); (e) Theft, Seizure, Loss, Damage, Repairs: If for any reason the Goods are stolen, seized, lost, damaged or require repairs, Customer must immediately advise PX of the theft, seizure, loss, damage or repairs required. Customer must pay all costs and comply with PX's directions in connection with replacing or recovering the Goods, repairing any damage or the replacing of any parts (fair wear and tear excepted). Customer must continue to pay the Fees while the Goods are being replaced or repaired or, in the event of theft, seizure or loss, while the Goods are missing. PX will not be liable for any loss or damage in relation to the unavailability of the Goods; (n No Dealing or Modifying or Security Interests: Customer must not sell, lend, lease, transfer, modify or otherwise deal with the Goods without first obtaining PX's written consent. Customer must not create, or allow to be created, a security interest over the Goods; ·
(g) Inspection: Customer must allow PX to inspect the Goods at any time during normal business hours, provided that PX first gives Customer not less than 2 Business Days' notice;
(h) Return of Goods: When this Agreement ends (either by completion of the Term or by way of termination), Customer will, at Customer's expense, return the Goods, in good working order and undamaged condition (fair wear and tear excepted) to PX's place.of business. If the Customer fails to return the Goods within 14 Business Days of the end of the Agreement, Customer will pay PX the fair value of the Goods as at the completion of the Term; (i) Repossession: If Customer does not return the Goods when required hereunder, PX may (subject to compliance with applicable law) enter any premises where PX reasonably believes that the Goods may be located and Customer will provide all reasonable authority and assistance to enable recovery of those Goods by PX. Customer will be liable to PX for all costs (including reasonable attorney's fees) incurred by PX in recovering the Goods; and 0) Further supply: The rental of Goods by PX to Customer does not guarantee Customer that PX will supply Goods beyond the Initial Term
18. Payment Express Support Services
18.1 Support: PX will provide the Support Services to Customer.
18.2 Emergency Support Services and Other Services: PX may make available the Emergency Support Services. If Customer requires Emergency Support Services and/or services additional to the Support Services PX may, if it agrees to provide those services to Customer, charge Customer for those services on a time and materials basis and on such other terms and conditions as may be agreed between the parties.
18.3 Alterations to Software: PX may, at its sole discretion, alter, upgrade, update or change Payment Express at any time during the Term of this Agreement. Where PX believes that such alteration, upgrade, update or change will, or is likely to, materially affect Customers use of Payment Express, PX will endeavor to notify Customer of this in advance. Customer acknowledges and agrees that, if Customer fails to promptly install all updates to any software forming part of Payment Express supplied by PX in connection with this Agreement Customer may be unable to process Transactions and that:
(a) PX will not be liable to Customer under this Agreement in respect of such inability; and (b) PX will be released from any obligation to supply the Support Services during any period which Customer has failed to install any such update.
18.4 PX Website: Customer acknowledges and agrees that PX may, at its sole discretion, determine what information, data, features and functionality is made available to Customer via the PX Website. Customer agrees to comply with any terms that PX may specify in relation to Customer's use of the PX Website. In the event of any inconsistency between the terms and conditions of this Agreement and those on the PX Website, the terms and conditions of this Agreement will apply to the extent of that inconsistency. PX will supply user names and passwords to enable authorized users of Customer to access the PX Website. Customer must keep such user names and passwords secure and made known only to authorized users and will be responsible for all use of the PX Website through use of Customer's user names and passwords. If Customer breaches any term of this Agreement or the terms of use of the PX Website, PX may disable Customer's user names and passwords.
18.5 Offline Mode: Customer authorizes PX to enable processing of credit cards offline in the event of an internet or connection failure ("Offline Mode"). Additionally, Customer authorizes PX to enact service in Offline Mode until internet service is restored for a maximum of 4 hours per event. Transactions in Offline Mode are capped at fifty (50) dollars maximum per transaction per card, and a maximum of five-hundred (500) transactions processed per device per Offline Mode event and a maximum of one-thousand (1000) dollars total per device per Offline Mode event Customer and PX agree and acknowledge that PX is not liable for unsuccessful transactions that are a result of Offline Mode transaction processing.'Customer is responsible with acquiring approval from its banking partner for operation of Offline Mode. PX is not liable if the terms of Clause 18.5 or the operation of Offline Mode causes Customer's account to be downgraded, shut down, disrupted, or otherwise adversely impacted.
19. General
19.1 Entire Agreement: This Agreement including all schedules hereto records the entire arrangement between the parties relating to all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.
This Agreement expressly supersedes any and all terms and conditions stated in any purchase order or other form related to this Agreement, unless otherwise agreed to in writing by PX's General Counsel.
19.2 Disputes: Section left intentionally blank. This section left Intentionally blank.
19.3 Waiver: No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Agreement. 19A Severance: Any provision in this Agreement which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other provision which shall remain in full force and effect.
19.5 Assignment: Section left Intentionally blank. ·
19.6 Amendment: Except as expressly provided for in this Agreement, no amendment to this Agreement will be valid unless recorded in writing and signed by a duly authorized senior representative of each party.
19.7 Goveming Law and Jurisdiction: This section left intentionally blank.
19.8 Remedies: The rights, powers and remedies provided in this Agreement are not exclusive of any rights, powers or remedies provided bylaw.
19.9 Subcontracting: PX may appoint subcontractors to perform any of its obligations under this Agreement.
19.10 Counterparts and copies: This Agreement may be signed in any number of counterpart copies which, read together, will constitute one and the same document. Any facsimile copy of this agreement or copy of this agreement sent via email in PDF format (induding any facsimile copy or copy sent via email in PDF format, of any document evidencing either party's signature of this agreement) may be relied upon by the other party as if it were an original copy. This Agreement may be entered into on the basis of an exchange of such facsimile or PDF copies.
19.11 Notices: Any notice or other communication to be given under this Agreement must be in writing and must be served by one of the following This section left intentionally blank.
19.12 Conflicts: In the event of any conflict or inconsistency between this Agreement and the terms of a purchase order made by Customer to PX, this Agreement shall govern and control.