HomeMy WebLinkAboutContract 49578-AD1CSC No. 49578--ADI
ADDENDUM TO 49578
BETWEEN
THE CITY OF FORT WORTH
AND
HEALTHSPACE USA, INC.
This Addendum to 49578 ("Addendum") is entered into by and between HealthSpace USA,
Inc. ("Vendor") and the City of Fort Worth ("City"), collectively the "parties."
The Contract documents shall include the following:
1. The Sub -Merchant Application and Agreement;
2. Exhibit A-2 Quotes for HS Pay CORE; and
3. This Addendum.
Notwithstanding any language to the contrary in the attached Sub -Merchant Application
and Agreement and Quote ([collectively referred to herein as] the "Agreement'), the parties
stipulate by evidence of execution of this Addendum below by a representative of each party duly
authorized to bind the parties hereto, that the parties hereby agree that the provisions in this
Addendum below shall be applicable to the Agreement as follows:
1. Term. The Agreement shall commence upon the date signed by the Deputy City
Manager below ("Effective Date") and shall expire no later than September 30, 2024 ("Expiration
Date"), unless terminated earlier in accordance with the provisions of this Agreement or otherwise
extended by the parties. This Agreement may be renewed for an unlimited number of one-year
renewal periods at the City's option, each a "Renewal Term." The City shall provide Vendor with
written notice of its intent to renew at least thirty (30) days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the non -
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten (10) calendar days after
receipt of notice from the non -breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non -breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate the Agreement by giving
written notice to the breaching party.
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
OFFICIAL RECORD
Addendum CITY SECRETARY page 1 of 9
FT. WORTH, TX
period for which appropriations were received without penalty or expense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attornevs' Fees, Penalties, and Liciuidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
7. Limitation of Liabilitv and Indemnity. Vendor agrees the exclusions or limits of
liability, as may be stated elsewhere in the Agreement, shall not apply to the City's claim or loss
arising from any of the following: (a) Vendor's breach of its data security obligations; (b) Vendor's
misuse or misappropriation of the City's intellectual property rights, (c) Vendor's indemnity
obligations, or (d) any other obligations that cannot be excluded or limited by applicable law. To
Addendum Page 2 of 9
the extent the Agreement, in any way, requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
8. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with the Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 9, Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under the Agreement, the City shall have the sole
right to conduct the defense of any such claim or action and all negotiations for its settlement
or compromise and to settle or compromise any such claim; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may
receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under the
Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof
is enjoined or restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non -infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s) with equally suitable, compatible, and functionally equivalent non -infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
9. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor suspects or becomes aware of any unauthorized access to any financial or personal
identifiable information ("Personal Data") by any unauthorized person or third party, or
becomes aware of any other security breach relating to Personal Data held or stored by
Vendor under the Agreement or in connection with the performance of any services
performed under the Agreement or any Statement(s) of Work ("Data Breach"), Vendor shall
immediately notify City in writing and shall fully cooperate with City at Vendor's expense
Addendum Page 3 of 9
to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully
and immediately comply with applicable laws, and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work,
or as required by law. Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
10. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
11. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
12. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
13. Public Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of
the Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Agreement and shall have no force or effect. In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
14. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
Addendum Page 4 of 9
15. Network Access.
a. Citv Network Access. If Vendor, and/or any of its employees, officers,
agents, servants or subcontractors (for purposes of this section "Vendor Personnel"),
requires access to the City's computer network in order to provide the services herein,
Vendor shall execute and comply with the Network Access Agreement which is attached
hereto as Exhibit "A" and incorporated herein for all purposes.
b. Federal Law Enforcement Database Access. If Vendor, or any Vendor
Personnel, requires access to any federal law enforcement database or any federal criminal
history record information system, including but not limited to Fingerprint Identification
Records System ("FIRS"), Interstate Identification Index System ("III System"), National
Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), or Texas Law
Enforcement Telecommunications Systems ("TLETS"), that is governed by and/or defined
in Title 28, Code of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of
providing services for the administration of criminal justice as defined therein on behalf of
the City or the Fort Worth Police Department, under the Agreement, Vendor shall comply
with the Criminal Justice Information Services Security Policy and CFR Part 20, as
amended, and shall separately execute the Federal Bureau of Investigation Criminal Justice
Information Services Security Addendum. No changes, modifications, alterations, or
amendments shall be made to the Security Addendum. The document must be executed as
is, and as approved by the Texas Department of Public Safety and the United States
Attorney General.
16. Immigration Nationalitv Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
17. No Bovcott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2271 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 2271 of the Texas Government Code. By signing this Addendum, Vendor certifies
that Vendor's signature provides written verification to City that Vendor: (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the Agreement.
Addendum Page 5 of 9
18. Riaht to Audit. Vendor agrees that City shall, until the expiration of three (3) years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
19. Prohibition on Bovcottina Enerav Companies. Vendor acknowledges that in
accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from entering
into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly
or partly from public funds of the City with a company with 10 or more full-time employees unless
the contract contains a written verification from the company that it: (1) does not boycott energy
companies; and (2) will not boycott energy companies during the term of the contract. The terms
"boycott energy company" and "company" have the meaning ascribed to those terms by Chapter
2276 of the Texas Government Code. To the extent that Chapter 2276 of the Government Code is
applicable to this Agreement, by signing this Agreement, Vendor certifies that Contractor's
signature provides written verification to the City that Contractor: (1) does not boycott energy
companies; and (2) will not boycott energy companies during the term of this Agreement.
20. Prohibition on Discrimination Against Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, the City is prohibited from entering into a contract for goods or services that
has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not have a practice, policy, guidance, or directive
that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate
during the term of the contract against a firearm entity or firearm trade association. The terms
"discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those
terms by Chapter 2274 of the Texas Government Code. To the extent that Chapter 2274 of the
Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies
that Contractor's signature provides written verification to the City that Contractor: (1) does not
have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm
trade association; and (2) will not discriminate against a firearm entity or firearm trade association
during the term of this Agreement.
21. Insurance.
1.1. The Vendor shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the City:
1.1.1. Commercial General Liability:
1.1.1.1. Combined limit of not less than $2,000,000 per occurrence;
$4,000,000 aggregate; or
Addendum Page 6 of 9
1.1.1.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury.
1.1.1.3. Defense costs shall be outside the limits of liability.
1.1.2. Statutory Workers' Compensation and Employers' Liability Insurance
requirements per the amount required by statute.
1.1.3. Technology Liability (Errors & Omissions)
1.1.3.1. Combined limit of not less than $2,000,000 per occurrence;
$4million aggregate or
1.1.3.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury. The umbrella policy shall cover amounts for
any claims not covered by the primary Technology Liability policy. Defense costs
shall be outside the limits of liability.
1.1.3.3. Coverage shall include, but not be limited to, the following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
1.1.3.3.4. Fraud, Dishonest or Intentional Acts with final
adjudication language;
1.1.3.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property infringement
claims and for indemnification and legal defense of any claims of
intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Vendor under this
Agreement;
1.1.3.3.6. Technology coverage may be provided through
an endorsement to the Commercial General Liability (CGL) policy, a
separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted. Either is
acceptable if coverage meets all other requirements. Technology coverage
shall be written to indicate that legal costs and fees are considered outside
of the policy limits and shall not erode limits of liability. Any deductible
will be the sole responsibility of the Vendor and may not exceed $50,000
without the written approval of the City. Coverage shall be claims -made,
Addendum Page 7 of 9
with a retroactive or prior acts date that is on or before the effective date
of this Agreement. Coverage shall be maintained for the duration of the
contractual agreement and for two (2) years following completion of
services provided. An annual certificate of insurance, or a full copy of the
policy if requested, shall be submitted to the City to evidence coverage;
and
1.1.3.3.7. Any other insurance as reasonably requested by
City.
1.2. General Insurance Requirements:
1.2.1. All applicable policies shall name the City as an additional insured
thereon, as its interests may appear. The term City shall include its employees, officers,
officials, agents, and volunteers in respect to the contracted services.
1.2.2. The workers' compensation policy shall include a Waiver of Subrogation
(Right of Recovery) in favor of the City of Fort Worth.
1.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction in
limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable
in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City
of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City
Attorney at the same address.
1.2.4. The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A- VII in the
current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and
solvency to the satisfaction of Risk Management. If the rating is below that required,
written approval of Risk Management is required.
1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained all
required insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
(signature page follows)
Addendum Page 8 of 9
[Executed effective as of the date signed by the Deputy City Manager below.] / [ACCEPTED
AND AGREED:]
City:
By: k�—> ;
Name: Mark McDaniel
Title: Deputy City Manager
Date: Oct 7, 2024
Vendor:
By: L,a4 e- '
Name: Cameron GarrisA
Title: COO
Date: 8/15/2024
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended:
/-�
By: /;;
Name: Kevin Gunn
Title: Director, IT Solutions
Approved as to Form and Legality:
By:
Name: Taylor Paris
Title: Assistant City Attorney
Contract Authorization:
M&C: P-12072
Approved:8/1/17
1295: 2017-195017
Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
By: Steven vandever (Sep 25, 202416:28 CDT)
Name: Steven Vandever
Title: Senior Manager, IT Solutions
City Secretary:
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o. F FORM 0
Oro °�0
?an4 nEXpSoa
By:
Name: Jannette S. Goodall
Title: City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 9 of 9
Exhibit A-2
Quote for Additional Services
HS GovTech
Solutions Inc.
Quote for Additional Services within HS Cloud Suite
Between:
City of Fort Worth
100 Fort Worth Trail
Fort Worth, Texas 76102
And
HS GovTech
436 East 36th Street
Charlotte, NC 28205
www.healthspace.com
Contact: Cameron Garrison
Director of Business Development
Phone: 980-309-1749
Cameron(ahscloudsuite.com
Quote for Additional Services
HS Cloud Suite for Fort Worth Texas
Quote for additional services requested by the City of Fort Worth, as allowable through
Contract 49578. Additional services to include:
• HS Pay CORE
The fees payable under this proposed agreement and scope of work are as follows:
• There is no cost to configure and implement HS Pay CORE
• The annual cost for warranty, hosting, maintenance, and technical support is:
o $2,100.00* (Amount to be prorated from date of execution to October 1, 2024,
where the annual contract is due)
• The per transaction merchant processing fees are as follows:
o All credit card transactions: 3.49% per transaction
o All ACH transactions: $5 per transaction (includes real time account validation
and balance verification to avoid NSF)
Total cost due upon execution is the applicable prorated annual amount listed below:
$175.00 per month
HS GovTech
Fort Worth Texas
Quote for Renewal
Lori Milliner, R.S.
Interim Supervisor/ Sr. Consumer Health Specialist
Environmental Services Department
818 Missouri Ave, Fort Worth, TX 76104
Office: 817-392-2042
Cell: 817-709-7298
Email: lori. milliner(a) fortworthtexas. aov
www. fortworth texas. aov
Submitted on behalf of HS GovTech USA by:
Cameron Garrison
Director of Business Development
Submission Date:9/12/2024
Quote for software and services
HS Cloud Suite for Fort Worth Texas
This quote is for a for a renewal of the HS Cloud Suite application for the following:
+ Childcare
+ Summer Nutrition
• Smoking
0 Fixed Food Establishments
& Mobile Food Establishments
• Temporary Food Establishments
a Plan Reviews
a Hotels/Motels
6 Public Swimming Pools/Spas
• Vector Control
a Game Room omm rcial Properties/Investigations
• Employee
Costs:
The annual cost for warranty, hosting, maintenance, and technical support is:
$36,000.00
1
HS GOVTECH
950 Warren Avenue, 41' Floor, East Providence, RI 02914 1866.567.2673
�,) CORE
SUB -MERCHANT APPLICATION & AGREEMENT
(for Government Entities)
Corporate/ Legal Name: City Of Fort Worth, Texas Federal Tax ID Number: 75-6000528
Location Address: 100 Fort Worth Trail Mailing Address: 100 Fort Worth Trail
City: Fort Worth State: TX Zip:76102-2661 city: Fort Worth State: TX Zip: 76102-2661
Business Phone #: 817-495-8500 Fax #: Website Address: WWW.fortworthtexaS.gov
TYPE OF BUSINESS: Government entity
BUSINESS ESTABLISHMENT DATE: 1 874
CURRENT PROCESSOR: Chase Merchant Services
■I:�GP1�:�a7a:�a�'ltl4al�
Company:
Public Trust Advisors, LLC
Phone:
480-573-8980
Company:
Weaver and Tidwell, LLP
Phone:
817-882-7749
IJ;11„ler.��.`lU=Lela:1.1.IGI���LIa•1;��,IGut•1.i�1
Legal Name: City of Fort Worth
Main Contact: Mark McDaniel
CHAIN MERCHANT ❑ YES ® NO
BUSINESS LICENSE M N/A
POS DEBIT: ® NO ❑ YES NETWORK:
(Z) Star MAC (W) Star East (Q) Star West (G) Interlink (8) Maestro (K) EBT
Contact: Ash Mehta
Payment Terms: Net 30
Contact: Kevin Sanford
Payment Terms: Net 30
Location No: Date:
�Bank Chain:
Title: Deputy City Manager Sub -Merchant Number:
1A.ia 1 Uo Ao.r A
LOCATION INFORMATION:Sales Rep:
DBA: Statement DBA (20 Chr.): SIC:
Location Address: 100 Fort Worth Way City: Fort Worth ST: Texas Zip: 76102
Mailing Address: 100 FortWorth Way City: Fort Worth ST: Texas Zip: 76102
Customer Service Phone Number: Phone #: Fax #:
Main Contact: Title: Email:
Avg Ticket: $320.00 Max:$30,000.00Monthly Vol: $290,000.00 Swipe % Keyed %
Products or Services Offered (be specific):
Terminal / Payment Application:
Sub -Merchant Use Independent Servicer (store, maintain, or transmits cardholder data)?
Servicer / Payment App. Manufacturer:
American Express (10 Digits): American Express Annual Volume: $1 05,255
® By checking this box, Sub -Merchant opts out of accepting American Express.
Merchant Type:
Building Type: Area Zoned: Square Footage:
Landlord: Contact:
Fulfillment Co. Contact:
This Location is Open for Business: ID Yes ❑ No Inspected By:
MOTO % Internet %
Version:
(if yes, provide the following)
Phone:
Merchant:
Phone:
Phone:
Date:
SMA-HSG-GOV v1.2
41
HS GOVTECH
�,) CORE
• • — ECOMMERCE QUESTIONNAIRE
Complete if Processing Less Than 70 % Card Present
Sell To: Business: % Public:
% Does the Sub -Merchant Own Product/Inventory?
Marketing:
Are Products Stored at the Business Location?
Orders Processed by:
If No, Where?
Cards Processed by:
If Processing Internet Transactions (Please Complete The Following)
When is the cardholder Charged?
Internet transactions encrypted by SSL or Better?
How many days to fulfill order?
Digital Certificate Utilized?
Exp Date:
Shipped by:
Certificate Number:
Products Shipped by:
Certificate Issuer:
Delivery Receipt Requested?
LIRL:
This area should also be completed for Additional locations if DDA is different from main location. Please Include a Voided Check.
If this is a "Deposit Only" account, then a letter from the Financial Institution verifying Transit and Routing Number and DDA# is required.
Account Type: ACH Deposit Routing/Transit # ACH Deposit Account Number Bank Name:
C K 1111000614 I 1127523311 I JPMorgan Chase Bank, N.A.
Account Type: ACH Fees Routing/Transit # ACH Fees Account Number Contact: Phone:
CK I II
Sub -Merchant hereby authorizes Acquirers and Provider to initiate credit and/or debit entries for amounts originating under the Sub -Merchant Agreement (via ACH or
otherwise) including any reversals or adjustments on original entries to the Sub -Merchant's Bank Account (as defined in the Sub -Merchant Agreement).
NOTE: Attach Voided Check or Bank Letter
Accepted By:
THIS SUB -MERCHANT APPLICATION IS ACCEPTED UPON THE SIGNING BY CORE BUSINESS TECHNOLOGIES
CORE Business Technologies ("CORE")
950 Warren Ave, 41h Floor
East Providence, RI 02914
Date
SMA-HSG-GOV-2022-01
HS GOVTECH
�,) CORE
Name of Entity:
SUB -MERCHANT SIGNATURE AUTHORIZATION
The undersigned certifies and agrees to as follows:
1. The undersigned and any of the persons identified below are duly authorized to sign this Sub -Merchant Services
Agreement and bind the entity indicated above to it. If any official indicated below resigns or is replaced, that
official's successor(s) in office shall be deemed to have signed this certification and the Sub -Merchant Services
Agreement. These persons also have the authority to perform the duties and functions defined in 2, 3 and 4
below.
TITLE PRINT NAME SIGNATURE
2. The persons listed below are duly authorized to act for and on behalf of the entity indicated above in any manner
relating to this Merchant Processing Agreement and any additional merchant location forms.
3. Both CORE and WorldPay may rely on the authority granted in this certification and the undersigned official
represents and warrants that this certification shall remain in full force and effect until revoked upon written
notice to CORE.
4. The following are the names, titles and genuine signatures of the persons authorized by this certification to
perform ongoing organizational processes and updates:
TITLE PRINT NAME SIGNATURE
I have subscribed my name as the official indicated above as of (date)
Signature: Print Name:
Title:
MERCHANT INQUIRY:
Has Sub -Merchant or Principals ever been terminated from accepting payment cards from any payment network for this business or any other businesses?
❑ NO ❑ YES (if yes, please explain)
Has Sub -Merchant ever filed Business Bankruptcv?
❑ NO ❑ YES (if yes, please explain)
How Many Chargebacks Last Year?
Total Amount: $
Please Mark all Card Types Accepted: For Details on how these transactions qualify at each level, please refer to your Merchant Operating Guide.
® Debit Cards: VIMC (consumer signature cards / all foreign issued cards / PIN debit cards) ® Other Cards: V/MC/DISC/AMEX (business credit / debit, consumer credit, & all foreign issued cards)
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SUB -MERCHANT SERVICES AGREEMENT
A) CORE
BANK DISCLOSURE
Member Bank Information: Member Bank, Fifth Third Bank, located in Cincinnati, OH, is responsible for the credit and debit card processing services provided
hereunder.
Important Member Bank Responsibilities:
1. Member Bank, and not Provider, is the entity approved to extend acceptance of Card Brand products directly to you.
2. Member Bank must be a principal (signer) to this Agreement.
3. Subject to this Agreement, Member Bank is responsible for and must provide settlement funds to you.
4. Member Bank is responsible for all funds held in reserve.
5. Member Bank is responsible for educating you on pertinent Operating Regulations with which you must comply; but this information may be provided to you by
Provider.
Important Merchant Responsibilities:
I . Ensure compliance with cardholder data security and storage requirements.
2. Maintain fraud and chargebacks below Card Brand thresholds.
3. Review and understand the terms of this Agreement.
4. Comply with applicable Operating Regulations.
5. Retain a signed copy of this Disclosure Page.
Merchant Resources
(a) You may download "Visa Regulations" from Visa's website at:
htto://usa.visa.com/merchants/onerations/on regulations.html
(b) You may download "Mastercard Rules" from Mastercard's website at:
htto://www.mastercard.com/us/merchant/sunnort/rules.html
(c) You may download "Discover Network Rules" from Discover's website at:
httn://www.discovemetwork.com/merchants/
(d) You may download "American Express Merchant Operating Guide" from American Express' website at:
httn://www.americanexnress.com/merchantoneuide
The responsibilities listed above do not replace the terms of the Sub -Merchant Agreement and are provided to ensure you understand some important obligations of each
party and that the Member Bank is the ultimate authority should you experience any problems.
Sub -Merchant Name:
Address:
Authorized Signature:
Name:
Title:
Date:
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INTRODUCTION
CORE
This SUB -MERCHANT SERVICES AGREEMENT (this "Sub -Merchant Agreement") governs the payment processing and other related services (the "Acquirer Services")
provided by Worldpay, LLC ("Worldpay") and its designated Member Bank (collectively, "Acquirers") to you ("Sub -Merchant") pursuant to this Sub -Merchant Agreement.
The Acquirer Services are being provided in conjunction with the Sub -Merchant Agreement entered into between Sub -Merchant and Wonderware Inc. d/b/a CORE Business
Technologies ("Provider"). In consideration of Sub -Merchant's receipt of credit or debit card ("Card") funded payments, and participation in programs affiliated with Mastercard
International Inc. ("Mastercard"), VISA U.S.A. Inc. ("VISA"), Discover ("Discover"), American Express Travel Related Services Company, Inc. ("American Express"), and
certain similar entities (collectively, "Card Brands"), Sub -Merchant is required to (i) enter into a direct relationship with an entity that is a member of the Card Brands, and (ii)
agree to comply with Card Brand rules as they pertain to applicable Card payments. By entering into this Sub -Merchant Agreement, Sub -Merchant is fulfilling the Card Brand
rule of entering into a direct relationship with a Member of the Card Brands; however, Acquirers understand that Sub -Merchant has contracted with Provider to obtain certain
processing services.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises contained herein, the parties agree as follows:
1. THE ACOUIRER SERVICES.
1.1 PROVISION AND USE OF ACQUIRER SERVICES
Sub -Merchant acknowledges that even though Sub -Merchant signs up for the payment processing feature of the Services, Sub -Merchant is not guaranteed use of that feature
of the Services. The payment processing feature will not be available to Sub -Merchant unless and until Provider and/or Acquirers have confirmed that Sub -Merchant is eligible
to use the Acquirer Services and this Sub -Merchant Agreement has become binding on all parties as provided herein. If that occurs, the Acquirer Services will be provided to
Sub -Merchant subject to and in accordance with this Sub -Merchant Agreement. Sub -Merchant will only use the Acquirer Services for business purposes and not for personal,
family, or household use.
1.2 REQUIRED INFORMATION
Sub -Merchant agrees to provide Provider and/or Acquirers with such information (including financial statements and other financial information) as they may request in order
to confirm that Sub -Merchant is eligible to receive the Acquirer Services. In addition, Sub -Merchant will furnish to Provider and/or Acquirers from time to time, promptly
upon their request, (i) a list of the current addresses of all Sub -Merchant's offices, (ii) a list of all assumed business names (d/b/a's) used by Sub -Merchant, and (iii) a list of
all products and services provided by Sub -Merchant. Sub -Merchant agrees that all information Sub -Merchant provides to Provider and/or Acquirers will be accurate and
complete and Sub -Merchant agrees to keep such information up-to-date. Sub -Merchant agrees to provide Provider with at least 30 days' prior written notice of Sub -Merchant's
intent to change the scope or nature of its business or its current type of products or services. If Acquirers determine such a change is material to its relationship with Sub -
Merchant, Acquirers may refuse to process Card transactions made subsequent to the change or terminate this Sub -Merchant Agreement. Sub -Merchant further agrees to
provide Provider with prompt written notice if it is the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. Sub -Merchant will also provide
Provider with prompt written notice of (i) any adverse change in Sub -Merchant's financial condition, (ii) any planned or anticipated liquidation or substantial change the basic
nature of its business, (iii) any transfer or sale of any substantial part (25% or more in value) of its total assets, or (iv) if Sub -Merchant or its parent is not a corporation whose
shares are listed on a national securities exchange or on the over-the-counter market, any change in the control or ownership of Sub -Merchant or its parent. Sub -Merchant
will also notify Provider of any judgment, writ, warrant of attachment, execution, or levy against any substantial part (25% or more in value) of its total assets not later than
three (3) days after Sub -Merchant obtains knowledge of any such judgment, writ, warrant of attachment, execution or levy.
1.3 VERIFICATION
Sub -Merchant authorizes Provider and/or Acquirers to make, from time to time, any business and personal credit inquiries (including, but not limited to, credit reports for
Sub -Merchant's directors, officers, and principals), identity -verification inquiries, transaction -verification inquiries (including, but not limited to, with customers), and any
other inquiries considered necessary relating to this Sub -Merchant Agreement, and to provide any information and documentation to Member and/or the Card Brands as may
be required by them. Sub -Merchant also authorizes any person or credit reporting agency to compile information to answer those inquires and to furnish that information to
Provider and/or Acquirers.
1.4 AUDIT RIGHT
In the event Acquirers reasonably suspect that they are subject to a financial or reputational risk due to Sub -Merchant's actions or omissions, Sub -Merchant authorizes
Acquirers to perform an audit or inspection of Sub -Merchant's operations to confirm compliance with this Sub -Merchant Agreement upon reasonable advance notice and at
Acquirers' expense. Sub -Merchant agrees to cooperate, in good faith, with any such audit conducted by Acquirers. Further, Sub -Merchant acknowledges and agrees that the
Card Brands have the right to audit Sub -Merchant's business to confirm compliance with the Operating Regulations.
1.5 DATA OWNERSHIP
Acquirers will own all data associated with Sub -Merchant's use of the Acquirer Services. Sub -Merchant acknowledges that this data may be used by Acquirers for any purpose
including the following: (a) providing and improving the Acquirer Services; (b) internal usage, including but not limited to, data analytics provided that such data is anonymous
and aggregated with other customer data; and (c) complying with applicable legal requirements and assisting law enforcement agencies.
2. CARD ACCEPTANCE.
2.1 ACCEPTANCE
Sub -Merchant will honor, without discrimination, any valid Card properly tendered by a person asserting to be the person in whose name the Card is issued ("Cardholder").
Sub -Merchant will not accept any payments from a Cardholder relating to previous charges for merchandise or services.
2.2 SUB -MERCHANT IDENTITY AND RETURNS
Sub -Merchant will properly disclose to the Cardholder, at the time of the Card transaction, Sub -Merchant's name, return policy, and other limitations Sub -Merchant may have
on accepting returned merchandise. Sub -Merchant's refund polices for purchases made with a Card must be at least as favorable as Sub -Merchant's refund policy for purchases
made with any other form of payment.
2.3 REQUEST AT TIME OF PAYMENT
When accepting payment, Sub -Merchant will request the Card expiration date and ZIP code or postal code from the Cardholder's billing address. It is also highly recommended
that Sub -Merchant obtain the security code from each Card, but Sub -Merchant must not store this information permanently.
2.4 CARD AUTHORIZATION
Sub -Merchant is required to obtain an authorization through the Services, in accordance with this Sub -Merchant Agreement, for each Card transaction. Acquirers reserve the
right to refuse to process any Card transaction presented by Sub -Merchant unless it includes a proper authorization. Authorizations are not a guarantee of acceptance or
payment of a transaction and do not waive any provision of this Sub -Merchant Agreement, or otherwise validate a fraudulent transaction or a transaction involving the use of
an expired Card. Acquirers may refuse to authorize any transaction.
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2.5 ADJUSTMENTS
All transactions and deposits are subject to audit and final verification by Provider and/or Acquirers and may be adjusted for inaccuracies. All credits provided to Sub -
Merchant are provisional and subject to chargebacks and adjustments in accordance with the Operating Regulations, whether or not a transaction is charged back by the Card
issuer.
2.6 SALES TRANSMITTALS
Sub -Merchant will retain a copy of the sales transmittal for the completed transaction in accordance with the Operating Regulations. Within three (3) business days of
Provider's and/or Acquirers' request, Sub -Merchant will produce copies of sales transmittals and other transaction evidence. Acquirers will have chargeback rights with
respect to such transactions for sales transmittals not so produced.
3. COMPLIANCE WITH RULES AND LAWS.
3.1 COMPLIANCE WITH OPERATING REGULATIONS AND LAWS
Sub -Merchant agrees to participate in, and to cause third parties acting as Sub -Merchant's agent ("Agents") to participate in, the Card Brands in compliance with, and subject
to, the by-laws, operating regulations and/or all other rules, policies, and procedures of the Card Brands (collectively, the "Operating Regulations"). In the event of any conflict
between the terms of this Sub -Merchant Agreement and the terms of the Operating Regulations, the terms of the Operating Regulations shall prevail.
Sub -Merchant further agrees to comply with the terms of this Sub -Merchant Agreement, all applicable federal, state, and local laws, rules, and regulations (collectively, the
"Laws") and such other policies and procedures as Acquirers may from time to time prescribe relating to Sub -Merchant's acceptance of Cards ("Policies"). Without limiting
the foregoing, Sub -Merchant agrees that it will fully comply with any and all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or
regulation), VISA, Mastercard, Discover, American Express and/or other networks, including but not limited to the Payment Card Industry Data Security Standard, the VISA
Cardholder Information Security Program, the Mastercard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by
the Card Brands ("Security Requirements"). For purposes of this section, Agents include, but are not limited to, Sub -Merchant's software providers and/or equipment
providers.
Sub -Merchant agrees to assist Provider and/or Acquirers regarding Sub -Merchant's compliance with the Operating Regulations, the Laws, Security Requirements, or the
Policies. Acquirers may, within their sole discretion, suspend the Acquirer Services for a reasonable period of time required to investigate suspicious or unusual activity, and
Acquirers shall have no liability for any Sub -Merchant losses arising from any suspension of funds disbursement. Acquirers may reverse Card transactions which they believe,
in their sole discretion, to violate this Sub -Merchant Agreement, Operating Regulations, the Laws, Security Requirements or the Policies, and Sub -Merchant agrees to
reimburse Acquirers for any such reversal.
3.2 DATA SECURITY
Sub -Merchant agrees to keep secure all systems and media containing account, Cardholder, or transaction information (physical or electronic) and destroy in a manner that
will render the data unreadable all such media that is no longer necessary or appropriate to store. If Sub -Merchant stores Cardholder account numbers, expiration dates, and
other personal Cardholder data in a database, Sub -Merchant agrees to follow Card Brand guidelines and the Operating Regulations (including Security Requirements) on
securing such data. Sub -Merchant may not retain or store magnetic stripe or CVV2, CVC2, or CID data after authorization. Sub -Merchant shall maintain industry "best
practices" regarding continuity procedures and systems to ensure security of Cardholder account information in the event of a disruption, disaster, or failure of Sub -Merchant's
data storage system and/or facility. Sub -Merchant agrees to display its consumer privacy policy on its website as well as its security method for transmission of Cardholder
data.
3.3 PROHIBITED PRACTICES
Sub -Merchant must not (i) require a cardholder to complete a postcard or similar document that includes the cardholder's account number, Card expiration date, signature, or
any other Card account data in plain view when mailed, (ii) add any tax to transactions, unless applicable law expressly requires that a Sub- merchant impose a tax (any tax
amount, if allowed, must be included in the transaction amount and not collected separately), (iii) request or use an account number for any purpose other than as payment for
its goods or services, (iv) disburse funds in the form of travelers checks if the sole purpose is to allow the cardholder to make a cash purchase of goods or services from Sub -
Merchant, (v) disburse funds in the form of cash unless Sub -Merchant is dispensing funds in the form of travelers checks, TravelMoney cards, or foreign currency (in such
case, the transaction amount is limited to the value of the travelers checks, TravelMoney cards, or foreign currency, plus any commission or fee charged by the Sub -Merchant),
or Sub- merchant is participating in a cash back service, (vi) submit any transaction receipt for a transaction that was previously charged back to the acquirers and subsequently
returned to Sub -Merchant, irrespective of cardholder approval, (vii) accept a Visa consumer credit card or commercial Visa product issued by a U.S. issuer to collect or
refinance an existing debt, (viii) accept a Card to collect or refinance an existing debit that has been deemed uncollectable by Sub -Merchant, or (ix) submit a transaction that
represents collection of a dishonored check. Sub -Merchant further agrees that, under no circumstance, will Sub- merchant store Cardholder data in violation of the Laws or
the Operating Regulations including but not limited to the storage of track-2 data. Neither Sub -Merchant nor its Agent shall retain or store magnetic -stripe data subsequent to
the authorization of a sales transaction.
3.4 RECURRING TRANSACTIONS
For any recurring transaction, Sub -Merchant must (i) obtain the Cardholder's prior written consent to periodically charge the Cardholder on a recurring basis for the goods or
services purchased, (ii) retain this permission for the duration of the recurring services and provide it upon request to Provider and/or Acquirers or the issuing bank of the
Cardholder's Card, (iii) retain written documentation specifying the frequency of the recurring charge, and the duration of time during which such charges may be made, and
the amount or range of amounts that may be charged, and (iv) notify the Cardholder that he or she may cancel recurring billing charges at any time. Cardholder must retain
evidence of such written consent for at least 24 months from the date Sub -Merchant submits the last recurring billing charge. Sub -Merchant will honor any Cardholder
cancellation, and if this Sub -Merchant Agreement is terminated for any reason, Sub -Merchant will, at its own cost, advise all Cardholders to whom Sub -Merchant submits
recurring billing charges that Sub -Merchant no longer accepts the Card for amounts owed.
3.5 BONA FIDE TRANSACTIONS
Sub -Merchant shall only complete sales transactions produced as the direct result of bona fide sales made by Sub -Merchant to cardholders in the ordinary course of business
in accordance with this Sub -Merchant Agreement, the Operating Regulations, and the Laws, and is expressly prohibited from processing, factoring, laundering, offering, and/or
presenting sales transactions which are produced as a result of sales made by any person or entity other than Sub -Merchant.
3.6 MINIMUM/MAXIMUM TRANSACTIONS
Sub -Merchant may set a minimum transaction amount to accept a Card that provides access to a credit account, under the following conditions: (i) the minimum transaction
amount does not differentiate between Card issuers; (ii) the minimum transaction amount does not differentiate between Mastercard, Visa, or any other Card Brand; and (iii)
the minimum transaction amount does not exceed ten dollars (or any higher amount established by the Federal Reserve). Sub -Merchant may set a maximum transaction
amount to accept a Card that provides access to a credit account, under the following conditions: Sub -Merchant is a (i) department, agency, or instrumentality of the U.S.
government; (ii) corporation owned or controlled by the U.S. government; or (iii) Sub -Merchant whose primary business is reflected by one of the following MCCs: 8220,
8244, 8249 —Schools, Trade or Vocational; and the maximum transaction amount does not differentiate between Mastercard, Visa, or any other Card Brand.
3.7 ILLEGAL TRANSACTIONS
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Sub -Merchant may not submit or knowingly permit any cardholder to submit any transaction that is illegal or that Sub -Merchant should have known is illegal, including but
not limited to transactions involving pornography, money laundering, or financing terrorist activities. Sub -Merchant agrees to comply with any and all instructions Provider
gives Sub -Merchant from time to time regarding payment processing provided hereunder. Sub- merchant agrees that Provider may investigate and audit Sub -Merchant's
compliance with this Sub -Merchant Agreement from time to time, and Sub -Merchant agrees to cooperate fully with Provider in any investigation or audit.
3.8 USE OF TRADEMARKS
The Card Brands are the sole and exclusive owners of their marks and Sub -Merchant's use of their marks must comply with the Operating Regulations. Acquirers are the sole
and exclusive owner of their respective marks and Sub -Merchant's use of Acquirer marks will fully comply with Acquirer policies and instructions. At any time Acquirers
may prohibit Sub -Merchant's use of the marks or require changes to Sub -Merchant's use of the marks as Acquirers deem necessary or appropriate. Sub -Merchant's right to
use Acquirer marks or the Card Brand marks will cease upon termination of this Sub -Merchant Agreement and Sub -Merchant agrees not to contest the ownership of the marks
for any reason.
3.9 THIRD PARTY SERVICE PROVIDERS
Sub -Merchant must provide Provider written notification regarding Sub -Merchant's use of any Agents. Sub -Merchant will be liable for any breach of the Operating
Regulations by an Agent. If there is unauthorized access to Cardholder data in the possession of Sub -Merchant or its Agents, Sub -Merchant must immediately notify Provider
and cooperate with Provider and/or Acquirers regarding reasonable requests for information regarding the security breach.
3.10 CONFIDENTIALITY
Sub -Merchant agrees to retain in strictest confidence all information and data belonging to or relating to Acquirer's business and will safeguard such information and data by
using the same degree of care, but no less than a reasonable amount of care, that Sub -Merchant uses to protect its own confidential information.
3.11 DISPUTES
a. SUB -MERCHANT'S DUTY TO MONITOR
Acquirers will not, and have no obligation to, confirm the validity of the recipient or the underlying transaction pursuant to which funds are transferred. Acquirers assume no
liability for any unauthorized transfer request and the attendant transfer of funds, unless and until Sub -Merchant provides appropriate and timely notice of the unauthorized
transfer requests to Provider. It is Sub -Merchant's sole obligation and responsibility to promptly and consistently inspect Sub -Merchant's transaction history and must
immediately report any possible errors to Provider.
b. DISPUTES, INQUIRIES, AND CHARGEBACKS
Working with Provider, Acquirers will handle Card Brand inquiries about Sub -Merchant's Card transactions, in addition to disputes between Sub -Merchant and a customer
involving Card payment transactions. Based on customer disputes, Acquirers may reverse Card transactions ("chargebacks"), and Provider and/or Acquirers will offset the
value of such chargebacks from monies owed to Sub -Merchant. Sub -Merchant must not reenter or reprocess any Card transaction that has been charged back, but instead will
allow the chargeback process to proceed to its conclusion as described in the Operating Regulations. If Sub -Merchant disagrees with a chargeback, Sub -Merchant may request
a chargeback reversal within the applicable Card Brand's timeline in the Operating Regulations. "Excessive Activity" means: chargebacks in excess of .50% of the transaction
ratio of Sub -Merchant's Card transactions; or, chargebacks in excess of .50% of the transaction ratio of the dollar amount of Sub -Merchant's Card transactions; or, returns in
excess of 3% of the transaction ratio of Sub -Merchant's Card transactions; or, denied transactions in excess of 5% of the transaction ratio of Sub -Merchant's Card transactions.
The existence of Excessive Activity will be a breach of this Sub -Merchant Agreement and may result in action as Acquirers deem necessary, including, but not limited to,
termination or suspension of processing privileges or creation or maintenance of a reserve. Acquirers may revoke or reverse any credit given to Sub -Merchant where: (i) the
Card transaction was not made in compliance with this Sub -Merchant Agreement and the Operating Regulations, the Laws, or the Policies; (ii) the Cardholder disputes liability
to Provider and/or Acquirers for any reason, including but not limited to those chargeback rights enumerated in the Operating Regulations; (iii) the Card transaction was not
directly between Sub -Merchant and the Cardholder; or (iv) a deposit to Sub -Merchant was made erroneously.
C. REFUND CREDITS
Sub -Merchant will issue a credit memorandum instead of making a cash advance, a disbursement, or a refund on any Card transaction. Provider and/or Acquirers will debit
from amounts owing Sub -Merchant for the total face amount of each credit memorandum submitted. Sub -Merchant will not submit a credit relating to any Card transaction
not originally submitted to Provider, nor will it submit a credit that exceeds the amount of the original Card transaction. Sub -Merchant will, within the time period specified
by the Operating Regulations, provide Provider and/or Acquirers with a credit memorandum or credit statement for every return of goods or forgiveness of debt for services
that were the subject of a Card transaction.
3.12 SPECIAL MASTERCARD TERMS
As used in this Section 3.12: (i) "Corporation" means Mastercard International Incorporated, Maestro International Inc., and their subsidiaries and affiliates; (ii) "Interchange
System" means the computer hardware and software operated by and on behalf of the Corporation for the routing, processing, and settlement of transactions (iii) "Marks"
means the names, logos, trade names, logotypes, trademarks, service marks, trade designations, and other designations, symbols, and marks that the Corporation owns,
manages, licenses, or otherwise controls and makes available for use by authorized entities in accordance with the Standards, and "Mark" means any one of the Marks; and
(iv) "Standards" means the Amended and Restated Certificate of Incorporation and the bylaws, operating rules, regulations, policies, and procedures of the Corporation,
including but not limited to any manuals, guides or bulletins, as may be amended from time to time.
Sub -Merchant acknowledges and agrees: (i) Sub -Merchant will comply at all times with all applicable Standards, as amended from time to time; (ii) the Corporation is the
sole and exclusive owner of the Marks, and Sub -Merchant will not contest the ownership of the Marks for any reason; (iii) the Corporation may at any time, immediately and
without advance notice, prohibit the Sub -Merchant from using any of the Marks for any reason; and (iv) the Corporation has the right to enforce any provision ofthe Standards
and to prohibit the Sub -Merchant and/or Provider from engaging in any conduct the Corporation deems could injure or could create a risk of injury to the Corporation,
including injury to reputation, or that could adversely affect the integrity of the Interchange System, the Corporation's "confidential information" (as defined in the Standards),
or both; and Sub -Merchant will not take any action that could interfere with or prevent the exercise of this right by the Corporation.
Sub -Merchant agrees that Provider may require any changes to Sub -Merchant's website or otherwise that Provider deems necessary or appropriate to ensure that Sub -Merchant
remains in compliance with the Standards governing the use of the Marks.
In addition to the termination provisions set forth in Section 5, this Sub -Merchant Agreement will automatically and immediately terminate if the Corporation de -registers
Provider or if an Acquirer ceases to be approved by the Corporation for any reason or if such Acquirer fails to have a valid license with the Corporation to use any Mark
accepted by Sub -Merchant. Further, Provider, at its discretion or at the direction of an Acquirer or the Corporation, may terminate this Sub -Merchant Agreement immediately
for activity deemed to be fraudulent or otherwise wrongful by Provider, an Acquirer, or the Corporation. In the event of any conflict or inconsistency between any provision
of this Sub -Merchant Agreement and the Standards, the Standards will govern as to any transaction involving the Corporation or its Cards.
4. FEES, SETTLEMENT, TAXES & IRS REPORTING.
4.1 FEES
Sub -Merchant agrees to pay to Provider on demand (i) any and all service or processing fees, taxes, or other charges associated with payment transactions processed through
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the Service, as specified in Provider's Fee Schedule as in effect from time to time, or in another applicable document (e.g., an order form), (ii) any adjustments, fees, penalties,
or costs incurred by Provider as a result of any dispute related to a User Payment (as defined below) or to any payment transaction alleged to have processed through the
Service; and (iii) any fees or charges imposed by third parties (including Card Brands and Acquirers) related to disputed, returned, or cancelled transactions or User Payments.
Sub -Merchant authorizes and directs Provider to deduct the amounts Sub -Merchant owes under this paragraph from User Payments, and Sub -Merchant understands that User
Payments Provider remits to Sub -Merchant will be net of these amounts.
Sub -Merchant further agrees that Provider may withhold the following amounts from User Payments, and Sub -Merchant understands that User Payments Provider remits to
Sub -Merchant will be net of these amounts: (i) the amount of any User Payment that is subject to dispute or reasonably anticipated to be subject to dispute as determined in
Provider's sole discretion (such as in the case of Card charge backs) and any related adjustments, fees, penalties, or costs Provider incurs or reasonably anticipates Provider
will incur as a result of the dispute; (ii) any third -parry fees or charges Provider incurs or reasonably anticipates Provider will incur as a result of a disputed, returned, or
cancelled User Payments, including any imposed on Provider by Acquirers; (iii) any taxes or other amounts as required by law; and (iv) any other amounts Sub -Merchant
owes to Provider under the Sub -Merchant Agreement, including any amounts that Provider reasonably believes are or may be owed to Provider as a result of any breach by
Sub -Merchant of this Sub -Merchant Agreement or pursuant to Sub -Merchant's indemnification obligations under the Sub -Merchant Agreement. Sub -Merchant authorizes
Provider to use the funds so withheld to satisfy Sub- merchant's obligations in respect of any matters described in this paragraph.
To the extent the funds so withheld exceed the amount(s) actually required to satisfy Sub -Merchant's obligations, the remaining funds will be treated as User Payments
received by Provider during the calendar month in which Provider determines (in Provider's sole and reasonable discretion) that Sub -Merchant's obligations have been
satisfied and remitted to Sub -Merchant in accordance with the paragraphs above. In the event amounts deducted or withheld from User Payments are insufficient to pay all
amounts Sub -Merchant owes to Provider hereunder, Sub -Merchant agrees to pay such amounts on demand, and to pay all attorneys' fees and costs and expenses of collection
Provider incurs in collecting amounts Sub -Merchant owes.
4.2 SETTLEMENT
Upon receipt of Sub -Merchant's sales data for Card transactions through the Services, Acquirers will process Sub -Merchant's sales data to facilitate the funds transfer between
the various Card Brands and Sub -Merchant. After Acquirers receive credit for such sales data, Acquirers will either fund Sub -Merchant directly or through Provider to an
account designated by Provider ("Provider Designated Account"), for such Card transactions. Sub -Merchant agrees that Acquirers' deposit of funds to the Provider Designated
Account shall discharge Acquirers of their settlement obligation to Sub -Merchant. Any dispute concerning the amount or receipt of settlement shall be between Provider and
Sub -Merchant. Acquirers will debit the Provider Designated Account for funds owed to Acquirers as a result of the Acquirer Services provided hereunder. Further, if a
cardholder disputes a transaction, if a transaction is charged back for any reason, or if Acquirers reasonably believe a transaction is unauthorized or otherwise unacceptable,
the amount of such transaction may be charged back and debited from Sub -Merchant or Provider.
4.3 REMITTANCE BY PROVIDER
Unless Sub -Merchant and Provider otherwise agree in writing, funds received by Provider in respect of payments by Cardholders to Sub -Merchant that are processed through
the Service ("User Payments") will be remitted to Sub -Merchant (net of amounts Acquirers and/or Provider is authorized to deduct or withhold, as described above and in
this Sub -Merchant Agreement) not later than thirty (30) days after the end of the calendar month in which such User Payments are received by Provider. Funds will be remitted
in the form Sub -Merchant selects when Sub -Merchant registers for payment processing services, or as subsequently updated as permitted by the Service.
If Sub -Merchant believes that Provider has failed to remit User Payments owed to Sub -Merchant, Sub -Merchant must notify Provider in writing within ninety (90) days of
the date of such remittance or from the date when Sub -Merchant purports such remittance would have been due, specifying in reasonable detail the amounts Sub -Merchant
believes are owed. Sub -Merchant's failure to so notify Provider shall result in Sub -Merchant's waiver of any claim relating to such disputed remittance. Amounts owed to
Sub -Merchant shall be calculated solely based on records maintained by Provider, which shall be presumed correct absent manifest error. Sub -Merchant shall have no audit
rights hereunder.
4.4 SUB -MERCHANT ACCOUNT
To ensure proper remittance of User Payments, Sub -Merchant is solely responsible for providing and maintaining accurate contact and payment information associated with
Sub -Merchant's account, which may include without limitation applicable tax information. If Provider believes that Provider is obligated to obtain tax information and Sub -
Merchant does not provide this information to Provider after Provider has requested it, Provider may refuse to remit User Payments to Sub -Merchant until Sub -Merchant
provides this information or otherwise satisfies Provider that Sub -Merchant is not a person or entity from whom Provider is required to obtain tax information. Sub -Merchant
agrees to pay all applicable taxes or charges imposed by any government entity in connection with Sub -Merchant's participation in the Service.
4.5 RESERVE
Provider and/or Acquirers may, in their reasonable discretion, establish a reserve if they believe there is a risk of potential chargebacks, returns, or any other risk or liability
associated with Sub -Merchant's use of the Acquirer Services or to ensure current or future payment owed to Provider and/or Acquirers. Provider will provide sub -Merchant
with notice of the reserve and the terms of the reserve. Provider and/or Acquirers may require that a certain portion of Sub -Merchant's Card transaction proceeds be held by
Acquirers in reserve for a certain period of time, or that Sub -Merchant make a lump sum payment for the reserve. Provider and/or Acquirers may change the terms of the
reserve at any time by providing Sub -Merchant with notice of the new terms. Provider and/or Acquirers have the right to use funds otherwise owed to Sub -Merchant to
establish, increase, or maintain funds in reserve. Acquirers may hold a reserve as long as Provider and/or Acquirers deem necessary to mitigate risks associated with Sub -
Merchant's transactions. Sub -Merchant understands and agrees that if Sub -Merchant is required to establish a reserve, Sub -Merchant has an obligation under this Sub -
Merchant Agreement to maintain at all times the balance in the reserve set by Provider and/or Acquirers. Either Provider and/or Acquirers may, without notice, apply funds
designated as reserves against any outstanding amounts owed to them, respectively, under this Sub -Merchant Agreement. Provider and/or Acquirers may also debit the reserve
to exercise their rights under this Sub -Merchant Agreement, to collect any amounts due to them including, without limitation, rights of set-off and recoupment. Sub -Merchant
agrees that it is liable for all obligations associated with its use of the Acquirer Services even after the release of any reserve. Sub -Merchant will not be entitled to a return of
any sums remaining in reserve for up to 270 days following termination of its use of the Acquirer Services.
4.6 TAXES & IRS REPORTING
To comply with IRS 1099-K reporting requirements, either Provider or Acquirers may be required to file a form 1099-K with the U.S. Internal Revenue Service (IRS).
Provider and/or Acquirers may collect federal backup withholding upon transaction settlement, on behalf of the IRS, from Sub -Merchant if Sub -Merchant does not supply its
legal name, SSN or EIN, or if it fails to respond to a request from Provider and/or Acquirers to verify the same.
5. TERM AND TERMINATION.
5.1 TERM
This Sub -Merchant Agreement shall be deemed accepted and binding upon Sub -Merchant, Acquirers and Provider upon its execution by both Parties (the "Effective Date").
This Sub -Merchant Agreement shall commence on the Effective Date (and shall continue for four (4) years (the "Initial Term"). Thereafter, this Sub -Merchant Agreement
shall renew automatically for one (1) year periods unless either Party notifies the other upon one hundred eighty (180) days prior written notice (each a "Renewal Term")
(collectively, the "Initial Term" and each "Renewal Term," the "Term"). Either Party may terminate this Sub -Merchant Agreement in the event of a breach of this Sub -
Merchant Agreement by the other Party that has not been cured to such Party's reasonable satisfaction within thirty (30) days of the breaching Party's receipt of written notice.
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5.2 TERMINATION
Notwithstanding the foregoing, Acquirers may immediately cease providing Acquirer Services and/or terminate this Sub -Merchant Agreement without notice if (i) Sub -
Merchant or Provider fails to pay any amount to Acquirers when due, (ii) in Acquirers' opinion, provision of a service to Sub -Merchant or Provider may be a violation of the
Operating Regulations or any applicable Laws, (iii) Acquirers believes that Sub -Merchant has violated or is likely to violate the Operating Regulations or the Laws, or (iv)
Acquirers or Providers are required to do so by any of the Card Brands.
Further, Provider may terminate this Sub -Merchant Agreement at any time, in Provider's sole discretion, without prior notice to Sub -Merchant. If this Sub -Merchant
Agreement is terminated by any party hereto, the provisions of Section 4 above will continue to apply until Sub -Merchant has paid all amounts owed to Provider in respect
of the Services provided by Provider prior to termination.
5.3 FAILURE OF ACQUIRER SERVICES
Sub -Merchant agrees to provide Acquirers, via a communication with Provider, with written notice, specifically detailing any alleged failure of Acquirer Services, within
thirty (30) days of the date on which the alleged failure or error first occurred; failure to so provide notice shall be deemed an acceptance by Sub -Merchant and a waiver of
any and all rights to dispute such failure or error. Acquirers shall bear no liability and have no obligations to correct any errors resulting from Sub- merchant's failure to
comply with the duties and obligations of the preceding sentence.
5.4 EVENTS OF DEFAULT
An "Event of Default" shall mean the occurrence or existence of one or more of the following events or conditions, whatever the reason for such Event of Default and whether
voluntary, involuntary or effected by operation of law: (a) Sub -Merchant fails to pay any obligation under this Sub -Merchant Agreement to Acquirers or Provider when due;
(b) any representation or warranty made by Sub -Merchant under this Sub -Merchant Agreement, the Sub -Merchant Application or any financial statement, certificate, report,
exhibit or document required to be furnished by Sub -Merchant to Acquirers or Provider pursuant to this Sub -Merchant Agreement shall prove false or misleading in any
material respect as of the time when made, including any omission of material information necessary to make such representation, warranty or statement not misleading or
the failure to provide required information; (c) Sub -Merchant shall default in the performance or observance of any covenant, agreement or duty under this Sub -Merchant
Agreement or any Card Brand Regulation; (d) Sub -Merchant is no longer allowed by a Card Brand to accept such Card Brand's Cards as payment or Sub -Merchant's name
appears on a Card Brand's terminated merchant file; (e) Acquirers or Provider reasonably conclude that any criminal, fraudulent, unauthorized or suspicious activity has
occurred or is imminent with respect to Sub -Merchant's acceptance of Cards or Sub -Merchant's performance under this Sub -Merchant Agreement; (f) there is an unexplained
material change in Sub -Merchant's processed volume, average ticket size or mode of sale; (g) Acquirers or Provider reasonably conclude that there exists a risk of an abnormal
level of chargebacks or that Sub -Merchant may not fund Fees, Third -Party Costs for which Sub -Merchant is responsible hereunder, dispute items, or penalties as they occur;
(h) Sub -Merchant has defaulted on any obligation for borrowed money and the effect thereof may permit the holder of such indebtedness to accelerate the time when repayment
is due; (i) there is an adverse material change in Sub -Merchant's business, operations, financial condition, properties, assets or prospects; 0) one or more judgments against
Sub -Merchant for the payment of money remain undischarged, unsatisfied or unstayed for a period of forty five (45) consecutive days; (k) Sub -Merchant's lender takes
possession of Sub -Merchant's inventory; (1) a writ or warrant of attachment, garnishment, execution, or similar process shall have been issued against Sub -Merchant or any
of Sub -Merchant's assets; (m) a proceeding shall have been instituted with respect to Sub -Merchant (1) seeking an order for relief or a declaration entailing a finding that
Sub -Merchant is insolvent or seeking a similar declaration or finding, or seeking dissolution, winding up, charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief with respect to Sub -Merchant, Sub -Merchant's assets or Sub -Merchant's debts under any law relating to
bankruptcy, insolvency, relief of debtors or protection of creditors, termination of legal entities or any other similar law now or hereafter in effect, or (2) seeking appointment
of a receiver, trustee, custodian, liquidator, assignee, sequestrator or other similar official for Sub -Merchant or for all or any substantial part of Sub -Merchant's assets; or (n)
Sub -Merchant shall become insolvent, shall become generally unable to pay Sub -Merchant's debts as they become due, shall voluntarily suspend transaction of Sub -
Merchant's business, shall make a general assignment for the benefit of creditors, shall institute a proceeding described in subsection (m)(1) above, or shall consent to any
such order for relief, declaration, finding or relief described therein, shall institute a proceeding described in subsection (m)(2) above, or shall consent to any such appointment
or to the taking of possession by any such official of all or any substantial part of Sub -Merchant's assets, shall dissolve, windup, revoke or forfeit Sub -Merchant's charter (or
other constituent documents) or liquidate Sub -Merchant or any substantial part of Sub -Merchant's assets, or shall take any action in furtherance of any of the foregoing; (o)
accept a Card for an unlawful Internet gambling transaction; or (p) Sub -Merchant fails to become or remain "PCI compliant" (as required under applicable Card Brand
Regulations) and/or Sub -Merchant fails to certify such compliance to Provider upon request. You shall notify Acquirers and Provider in writing immediately upon becoming
aware of an Event of Default, or an event which, with the passing of time or the giving of notice, or both, would constitute an Event of Default.
5.5 REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of any Event of Default, Acquirers and Provider may employ any or all of the following remedies it deems appropriate: (a) terminate this Sub -Merchant
Agreement immediately upon notice to Sub -Merchant; (b) without prior notice to Sub -Merchant, refuse to accept or revoke acceptance of any sales or credit, or the electronic
transmission thereof if applicable, received by Acquirers or Provider on or at any time after the occurrence of any Event of Default; (c) without prior notice to Sub -Merchant,
Acquirers or Provider may debit Sub -Merchant's accounts in an amount equal to any amount then owed to Acquirers or Provider; (d) establish a reasonable reserve using
Sub -Merchant's funds in Acquirers' possession to cover foreseeable Fees, Third -Party Costs for which Sub -Merchant is responsible hereunder, dispute items, penalties, and
Cardholder credits; (e) increase the Fees commensurate with the increased risk; (f) require Sub -Merchant to deposit, as cash collateral, such amounts as Acquirers or Provider
may require to secure Sub -Merchant's obligations hereunder; (g) report to one or more credit reporting agencies any outstanding indebtedness to Acquirers or Provider; or
(h) take such other action as may be permitted by law.
5.6 EARLY TERMINATION
For purposes of this Section 5.6, an "Early Termination" shall mean: (i) a termination of this Sub -Merchant Agreement by Acquirers or Provider following an Event of
Default specified in Section 5.4 above (ii); a termination of this Sub -Merchant Agreement by Sub -Merchant for any reason whatsoever, other than following written
termination notice given by Sub -Merchant pursuant to Section 1.2 or Section 5; or (iii) Sub -Merchant's deposit or submission of any of Sub -Merchant's Card Brand
branded transactions with any entity other than Acquirers. Your payment of the monthly minimum Fees shall not fulfill Sub -Merchant's obligation to Provider. The parties
agree that the actual damages which will result to Provider from an Early Termination are not readily ascertainable as of the effective date of this Sub -Merchant
Agreement. hi addition, Sub -Merchant acknowledges and agrees that in reliance on this Sub -Merchant Agreement and other long-term agreements, Provider will incur
additional long-term costs, including without limitation, computer hardware, software, and labor. Accordingly, upon the occurrence of an Early Termination, Sub -
Merchant shall pay to Provider, in addition to all amounts owed for the Services provided to Sub -Merchant pursuant to this Sub -Merchant Agreement, an amount equal to
the greater of (i) $500.00; or (ii) thirty percent (301/o) of the average total monthly Fees paid by Sub -Merchant (or Service Fees collected by Provider, if applicable) during
the preceding six (6) months (or shorter period if this Sub -Merchant Agreement has not been in effect for six (6) months), times the number of months, or portion thereof,
remaining in the Term resulting from failure to provide timely termination notice as described in Section 5.1 of this Sub -Merchant Agreement. The parties intend that this
Early Termination fee be in lieu of Provider's lost profits for the remainder of this Sub -Merchant Agreement, but not in lieu of any other damages to which Provider might
otherwise be entitled arising out of Sub -Merchant's wrongful acts or omissions.
6. SUB -MERCHANT WARRANTIES.
Sub -Merchant represents and warrants the following: (1) that all information submitted by Sub -Merchant to Provider and/or Acquirers relating to Sub -Merchant Application,
which is incorporated into the Sub -Merchant Agreement by reference, to use the Acquirer Services is correct, complete, and fully describes and details the nature, type, and
scope of the business in which Sub -Merchant is engaged; (2) that Sub -Merchant has never been placed on the Mastercard MATCH system or the Combined Terminated
Merchant File, and if so, Merchant has disclosed this to Provider and/or Acquirers; and (3) that all transactions are bona fide and no transaction involves the use of a Card for
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any purpose other than the purchase of goods or services from Sub -Merchant and does not involve a Cardholder obtaining cash from Sub -Merchant unless allowed by the
Operating Regulations.
7. INDEMNIFICATION.
As between Sub -Merchant and Acquirers, Sub -Merchant will be responsible for, and at its own expense, defend itself against any suits, claims, losses, demands, or damages
arising out of in connection with (A) any dispute with a Cardholder or any third party relating to any Card transaction, or (B) any breach by Sub -Merchant of any obligation
under this Sub -Merchant Agreement. Sub -Merchant will not make any claims against Acquirers for any liabilities, claims, losses, costs, expenses and demands of any kind
or nature, arising out of or in connection with any of the foregoing suits, claims, losses, demands or damages. Further, Sub -Merchant will not make any claims against
Acquirers for any actions they take against the settlement account or the reserve account in accordance with this Sub -Merchant Agreement, except to the extent such actions
are attributable to Acquirers' negligence, willful misconduct, or their breach of this Sub -Merchant Agreement.
Acquirers will be responsible for and will at their own expense defend themselves against any suits, claims, losses, demands, or damages arising solely out of (A) Acquirers'
breach of this Sub -Merchant Agreement, or (B) Acquirers' negligence or willful misconduct.
8. LIMITATION OF LIABILITY.
Sub -Merchant's sole and exclusive remedy for any and all claims against Acquirers arising out of or in any way related to the transactions contemplated herein shall be
termination of this Sub -Merchant Agreement. In the event that Sub -Merchant has any claim arising in connection with the Acquirer Services, rights, and/or obligations defined
in this Sub -Merchant Agreement, Sub -Merchant shall proceed against Provider and not against Acquirers, unless otherwise specifically set forth in the Operating Regulations.
In no event shall Acquirers have any liability to Sub -Merchant with respect to this Sub -Merchant Agreement or the Acquirer Services. Sub -Merchant acknowledges Acquirers
are only providing this Sub -Merchant Agreement to assist in Provider's processing relationship with Sub- merchant, that Acquirers are not liable for any action or failure to
act by Provider, and that Acquirers shall have no liability whatsoever in connection with any products or services provided to Sub -Merchant by Provider.
Acquirers' total liability under this Sub -Merchant Agreement for any reason will not exceed in the aggregate the amount of $5,000. In no event will Acquirers be liable for
indirect, special, or consequential damages.
9. DISCLAIMER OF WARRANTIES.
THE ACQUIRER SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY
STATED IN THIS SUB -MERCHANT AGREEMENT, ACQUIRERS SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON -
INFRINGEMENT, ARISING OUT OF OR RELATED TO THIS SUB -MERCHANT AGREEMENT.
SOME STATES DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY
NOT APPLY TO SUB -MERCHANT. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS SUB -MERCHANT AGREEMENT IN RELIANCE
UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
10. INTELLECTUAL PROPERTY RESTRICTIONS.
All materials or intellectual property provided by Acquirers to Sub -Merchant in connection with the Acquirer Services ("Materials") are owned by Acquirers or their third -
party licensors. Sub -Merchant shall not (and shall not permit any agent or third party) to: (a) copy all or any portion of any Materials; (b) decompile, disassemble, or otherwise
reverse engineer (except to the extent expressly permitted by applicable Law, notwithstanding a contractual obligation to the contrary) the Acquirer Services or Materials, or
any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Acquirer Services or any Materials or
any portion thereof, (c) modify, translate, or otherwise create any derivative works based upon the Acquirer Services or any Materials; (d) distribute, disclose, market, rent,
lease, assign, sublicense, pledge, or otherwise transfer the Acquirer Services or any Materials, in whole or in part, to any third parry; or (e) remove or alter any copyright,
trademark, or other proprietary notices, legends, symbols, or labels appearing on the Acquirer Services or in any Materials.
11. MISCELLANEOUS.
11.1 SEVERABILITY AND WAIVER
If any provision of this Sub -Merchant Agreement is held invalid, illegal, void, or unenforceable by reason of any judicial decision, all other provisions of this Sub -Merchant
Agreement shall nevertheless remain in full force and effect. No course of dealing, delay, or failure to enforce any provision or exercise any right under this Sub -Merchant
Agreement by Acquirers shall be construed as a waiver or estoppel of such provision or right, nor shall it amend this Sub -Merchant Agreement or affect the validity of this
Sub -Merchant Agreement or curtail Acquirers' ability to enforce such provision or exercise such right in the future. All waivers must be in writing and signed by Acquirers.
11.2 RIGHTS AND REMEDIES CUMULATIVE
The rights conferred upon Acquirers in this Sub -Merchant Agreement are not intended to be exclusive of each other or of any other rights and remedies Acquirers have under
this Sub -Merchant Agreement, at law or in equity. Rather, each right Acquirers have at law or in equity will be cumulative and concurrent and in addition to every other right.
11.3 ENTIRE AGREEMENT
This Sub -Merchant Agreement, Sub -Merchant Application, including the Operating Regulations and the Policies, and any amendment or supplement to this Sub -Merchant
Agreement, all of which are incorporated into this Sub -Merchant Agreement, constitutes the entire agreement between Sub -Merchant and Acquirers with respect to the matters
contained herein, and all prior or other agreements or representations, written or oral, are superseded by this Sub -Merchant Agreement. Sub -Merchant agrees that in entering
into this Sub -Merchant Agreement Sub -Merchant has not relied on any statement of Acquirers or its representatives. The parties acknowledge and agree (i) that this Sub -
Merchant Agreement applies only to Card transaction generated within the United States; and (ii) that this is a contract for commercial services.
11.4 ASSIGNABILITY
This Sub -Merchant Agreement may not be assigned by Sub -Merchant, directly or by operation of law, without the prior written consent of Acquirers and Provider. This Sub -
Merchant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees, and assignees.
11.5 AMENDMENTS
Acquirers and/or Provider may amend this Sub -Merchant Agreement at anytime. Notwithstanding the foregoing, Provider will give Sub -Merchant not fewer than thirty (30)
days advance notice of any new or increased fees imposed on Sub -Merchant in connection with payment processing under this Sub -Merchant Agreement.
11.6 CONSENT TO DO BUSINESS ELECTRONICALLY, ELECTRONIC COMMUNICATION, AND NOTICES
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Sub -Merchant consents to do business electronically, which means that Sub -Merchant agrees that all notices, instructions, or any other communications regarding transactions
under this Sub -Merchant Agreement (all of which are referred to herein as the "Communications") may be presented, delivered, stored, retrieved, and transmitted to Sub -
Merchant electronically. Sub -Merchant agrees to notify Provider of any change in its electronic or mailing address or other contact information.
11.7 EXECUTION OF AGREEMENT
The parties agree that this Sub -Merchant Agreement may be executed (a) in one or more counterparts, each of which will be deemed an original and all of which together will
constitute one and the same agreement; and (b) by using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies. Member
Bank is a parry to this Sub -Merchant Agreement. Member Bank may be changed, and its rights and obligations assigned to another parry by Acquirers at any time without
notice to Merchant. As of the commencement of this Sub -Merchant Agreement, Member Bank shall be Fifth Third Bank, located at Cincinnati, OH.
11.8 CHOICE OF LAW; JURISDICTION; WAIVER
THIS SUB -MERCHANT AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF IN WHICH SUB -MERCHANT IS LOCATED. SUB -
MERCHANT, ACQUIRERS AND PROVIDER HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) AGREE THAT ANY ACTION, SUIT OR PROCEEDING
BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, "RELATED LITIGATION") MUST BE BROUGHT IN A STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE COUNTY AND STATE IN WHICH SUB -MERCHANT ARE LOCATED; (B) SUBMIT TO THE JURISDICTION
OF SUCH COURTS; (C) WAIVE ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY RELATED LITIGATION
BROUGHT IN ANY SUCH COURT; (D) WAIVE ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND WAIVE ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT
DOES NOT HAVE JURISDICTION OVER SUB -MERCHANT OR ACQUIRERS AND PROVIDER; (E) CONSENT AND AGREE TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO SUB -
MERCHANT AT THE ADDRESS IN THE APPLICATION AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT
VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW); AND (F) WAIVE THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION. THE PREVAILING PARTY IN ANY
RELATED LITIGATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY'S FEES, COST AND EXPENSES.
AGREED AND ACCEPTED
SUB -MERCHANT:
BY:
TITLE:
AUTHORIZED
SIGNATURE:
DATE:
WONDERWARE INC. DB/A CORE BUSINESS TECHNOLOGIES
BY:
TITLE:
AUTHORIZED
SIGNATURE:
DATE:
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SUB -MERCHANT ACCOUNT
FEE SCHEDULE
ABSORBED FEE PROGRAM
A) CORE
Sub -Merchant agrees to pay all Card Brand fees, transaction processing costs and other processing fees on all transactions as set forth herein. Sub -Merchant
authorizes and directs Provider to charge such fees and costs to Sub -Merchant by monthly debit through the ACH system to Sub -Merchant's designated DDA
account. For a current list of Card Brand Interchange Rates, refer to each respective Card Brand website provided in the Bank Disclosure herein. Nothing in
this Fee Schedule shall be deemed to alleviate or reduce any of Sub -Merchant's other obligations under the Sub -Merchant Agreement, including, but not
limited to, Sub -Merchant's responsibilities with regard to Fees or interchange fees, assessments and other third -party charges charged to, directly or indirectly
incurred or otherwise paid by Provider and/or Acquirers which are attributable to Sub -Merchant's Card transactions other than penalties (collectively, "Third -
Party Costs").
ABSORBED CARD FEE PRICING
PROGRAM
Implementation & Setup Fee
Payment Service Program
Billed Once Per Merchant Account
FEES
PCI Level 1 Service Fee
Payment Service Program
Billed Monthly Per Merchant Account
Location/TID Fee
Payment Service Program
Billed Monthly Per Location or TID
TENDER
Card Program Fee
Payment Service Program
Billed Monthly Per Merchant Account
FEES
Visa
Billed Monthly Per Volume
Interchange, Dues,
Mastercard
Billed Monthly Per Volume
Assessments, Network and
Discover
Billed Monthly Per Volume
other Processing Fees
American Express
Billed Monthly Per Volume
PayPal & Venmo
Billed Monthly Per Volume
Discount Rate
Visa, Mastercard, Discover
Billed Monthly Per Volume
Discount Rate
American Express
Billed Monthly Per Volume
Discount Rate
PayPal & Venmo
Billed Monthly Per Volume
Batch Settlement Fee
All Daily Batches
Billed Monthly Per Batch
Network Authorization Fee
Billed Monthly Per Authorization
Network Transaction Fee
Billed Monthly Per Transaction
AVS Processing Fee
Billed Monthly Per Transaction
Network Settlement Fee
All Tender Types
Billed Monthly Per Transaction
Token Management Fee
Billed Monthly Per Stored Token
Card Account Updater
Billed Monthly Per Updated Card Match
Chargeback Fee
Billed Monthly Per Chargeback
Retrieval Fee
Billed Monthly Per Retrieval
Jubilee
Reservations
Billed Monthly Per Transaction
ABSORBED ACH/ECHECK FEE PRICING
ACH/eChecks ACH/eCheck Program Fee
I
Billed Monthly Per Legal Entity
Transaction Fee
All ACH/eChecks
Billed Monthly Per Volume
Settlement Fee
Billed Monthly Per Volume
Return Transaction Fee
All ACH Returns
Billed Monthly Per Returned Transaction
Bank Routing Verification
Billed Monthly Per Verification
NACHA Verification Service
Standard Bank Account
Billed Monthly Per Verification
Enhanced Bank Account
Billed Monthly Per Verification
PAYMENT GATEWAY FEE
PAYMENT Implementation & Setup Fee
Gateway Service Program
One -Time Fee Per Gateway Account
GATEWAY Service Fee
Gateway Service Program
I I
Billed Monthly Per Gateway Account
Transaction Fee
All Tender Types
Billed Monthly Per Gateway Transaction
TERMINAL FEE PRICING
TERMINALS Card Terminal Purchase Fee
One -Time Fee Per Terminal
All Devices
P2PE Service Fee
Billed Monthly Per Terminal
* The fees set forth above will not be changed for the Initial Term of the Sub -Merchant Services Agreement except (i) as mutually
agreed to in writing between CORE and Sub -Merchant or (H) if CORE determines, at its sole discretion, to modify the fees as a
result of changes in card brand interchange, dues, assessments, miscellaneous processing fees or new fees imposed by a third party,
and to the extent any of the aforementioned applies to Sub Merchant's usage of Services. CORE agrees to provide Sub -Merchant
with written notification of pricing changes at least 30 days prior to changes taking effect.
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MISC. FEES
Sub -Merchant understands and acknowledges that Sub -Merchant has elected to participate in the Government and Education Program provided by the Card Brands
(the "Program"). The Program allows registered and approved merchants (approved Merchant IDs or MIDs) to assess a variable service fee (a "Service Fee") on
certain debit and credit Card transactions. Registration and participation in the Program are subject to approval by the applicable Card Brands and Sub -Merchant
acknowledges that Sub -Merchant may not be eligible to participate in the Program. If registration and Card Brand approval is obtained, Sub -Merchant agrees to
comply with all Program requirements. Provider may terminate, amend, modify, or otherwise alter this Sub -Merchant Agreement, the Program, or the structure,
nature or amount of the Service Fee at any time with written notice to Sub -Merchant. Sub -Merchant authorizes and directs Acquirers to settle the proceeds received
for Service Fees into the Provider's bank account. In the event that Sub -Merchant receives any portion of the Service Fees, Sub -Merchant agrees to promptly pay
such amounts to Provider. Service Fees collected by Provider will be retained by Provider and Sub -Merchant will not be responsible for the payment of any
Fees or interchange fees, assessments and other third -party charges charged to, directly or indirectly incurred or otherwise paid by Provider and/or
Acquirers which are attributable to Sub -Merchant's Card transactions other than penalties (collectively, "Third -Party Costs") with the exception of the
Fees listed below. Nothing in this Section shall be deemed to alleviate or reduce any of Sub -Merchant's other obligations under the Sub -Merchant Agreement,
including, but not limited to, Sub- Merchant's responsibilities with regard to penalties and dispute items and Sub -Merchant's obligation to pay any early termination
fees, if applicable, pursuant to Section 5.6 of the Sub -Merchant Agreement.
In the event Sub -Merchant's customer disputes, refuses to pay and/or charges back the Service Fee amount to Provider, Sub -Merchant is responsible for collecting
and paying the Service Fee and the Chargeback Fee to Provider.
SERVICE FEE PRICING
SERVICE Visa, Mastercard & Discover
FEES American Express
PayPal
ACH / eChecks
Minimum Service Fee
Maximum Service Fee
Maximum Transaction Amount
Visa, Mastercard & Discover
American Express
PayPal
ACH / eChecks
Minimum Service Fee
Maximum Service Fee
Maximum Transaction Amount
Visa, Mastercard & Discover
American Express
PayPal
ACH / eChecks
Minimum Service Fee
Maximum Service Fee
Maximum Transaction Amount
Visa, Mastercard & Discover
American Express
PayPal
ACH / eChecks
Minimum Service Fee
Maximum Service Fee
Maximum Transaction Amount
Jubilee Reservations
Chargeback Fee
Retrieval Fee
ACH / eChecks Return
Transaction Fee
All Tenders
All ACH / eChecks
Billed to the Payer in real-time
Billed to the Payer in real-time
Billed to the Payer in real-time
Billed to the Payer in real-time
Billed to the Payer in real-time
Billed Monthly Per Chargeback
Billed Monthly Per Retrieval
Billed Monthly Per Returned Transaction
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SPECIAL PROVISIONS FOR ACH ADDENDUM
This SPECIAL PROVISIONS FOR ACH ADDENDUM (this "Addendum") is made a part of the terms and conditions of the SUB -MERCHANT SERVICES
AGREEMENT between ("Customer") and Wonderware Inc. d/b/a CORE Business Technologies ("CORE")
dated (the "Sub -Merchant Agreement"), and applies to ACH Payment acceptance (capitalized terms herein not defined elsewhere in the
Sub -Merchant Agreement shall have the meanings assigned in the ACH Rules). With respect to participation in an ACH Payment program, in the event
of a conflict between the terms of this Addendum and other terms of the Sub -Merchant Agreement, the terms below shall control.
SERVICES: CORE agrees to provide the services selected by Merchant on the front side hereof. All such services shall be provided by CORE in
accordance with laws applicable to the services and subject to the terms and conditions of this Agreement.
UNITED STATES LAWS AND REGULATIONS: Merchant acknowledges that it will not generate transactions that violate the laws or regulations of the
United States. This includes, but is not limited to; sanction laws administered by the Office of Foreign Assets Control (OFAC). It shall be the
responsibility of Company to obtain information regarding such OFAC enforced sanctions. (This information may be obtained directly from the OFAC
Compliance Hotline at 800-540-OFAC or from the OFAC's home page site at www.ustreas.aov/ofac.). All references to "transactions" in this Agreement
shall be deemed to refer to ACH transactions, which are defined as electronic payment transactions originated by Merchant and processed through the
ACH Network in the Federal Reserve System.
REQUIREMENTS FOR ACH ITEMS: Without limiting the generality of the foregoing: (i) you agree to comply with and be bound by the rules of the
National Automated Clearing House Association ("NACHA") in effect from time to time with respect to all automated clearing house ("ACH") transactions
conducted in conjunction with the Service ("ACH Rules")
Checks that may not be converted into ACH entries
• Corporate or Business checks (except for WEB)
• Third -party checks,
• Credit card checks (equity line / line of credit checks),
• Obligations of a financial institution (e.g. cashier's checks, money orders, etc),
• Checks drawn on the Treasury of the United States, A Federal Reserve Bank, or a Federal Home Loan Bank,
• Checks drawn on a state or local government, or
• Checks payable in a medium other that United States currency.
PREAUTHORIZED PAYMENT AND DEPOSIT SALES PROCEDURES
PPD ENTRY: A PPD entry is a customer initiated ACH debit entry to a Customer DDA Account initiated by the customer to a Business, for goods or
services provided by said merchant.
AUTHORIZATION REQUIREMENTS FOR PPD ACH ITEMS
Merchants originating PPD entries being submitted into the ACH Network for electronic settlement must obtain the customer's written authorization prior
to initiating a debit entry under this application. The language for the PPD authorization must conform to the requirements of the NACHA Operating
Rules, which require that the authorization (1) be in a writing (2) be readily identifiable as an ACH debit authorization, (3) clearly and conspicuously state
its terms, and (4) must (for recurring payments only) provide the Customer with a method to revoke their authorization by notifying the Merchant in the
manner prescribed. (5) Merchant must provide each Customer with an electronic or hard copy of the Customer's authorization for all Debit Entries to be
initiated to a Customer Account.
GENERAL REQUIREMENTS FOR CHECKS
The original paper check will not be deposited through the Services more than once. All checks will conform to the requirements of Merchant's deposit
agreement with its financial institution. All checks will conform to the requirements of the applicable ACH Rules. Merchant, as applicable, shall review
and validate the accuracy and completeness of the check data being captured including but not limited to the amount of the check and the legibility of
the check image generated from use of the services.
HARDWARE
Merchant is solely responsible for the selection, use and operation of the Hardware used to capture the electronic image of the paper checks using the
services, including the quality of the scanned check image results generated from the hardware. Hardware utilized must be certified for use with the
services in order to be deemed compatible with the services.
SETTLEMENT
In the event that CORE' or the CORE processing partner's ODFI is acting as the ODFI for Merchant, the following provisions shall apply: Merchant shall
immediately reimburse CORE, as applicable, for any shortfalls that occur due to non -sufficient funds in the settlement account. CORE reserves the right
to delay the availability of funds for deposit without prior written notices to Merchant if in its sole discretion CORE deems itself at financial or relative risk
for any and all services performed under this Agreement. Merchant hereby acknowledges and agrees that CORE shall have a right of setoff against any
and all fees, returns and refunds owed CORE or its processing partner by Merchant under this Agreement. "
WEB SALES PROCEDURES:
WEB ENTRY: A WEB entry is defined as an ACH debit entry to a Customer Account (personal DDA number) initiated by the customer to a Merchant -
Business, via the Internet, for goods or services provided by said merchant.
AUTHORIZATION REQUIREMENTS FOR WEB ACH ITEMS
Merchants originating WEB entries being submitted into the ACH Network for electronic settlement must obtain the customer's authorization prior to
initiating a debit entry under this application. The NACHA Operating Rules require that the authorization (1) be in a writing that is signed or similarly
authenticated by the Customer, (2) be readily identifiable as an ACH debit authorization, (3) clearly and conspicuously state its terms, and (4) must (for
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recurring payments only) provide the Customer with a method to revoke their authorization by notifying the Merchant in the manner prescribed.
The Merchant should prompt the customer to print the authorization and retain a copy. The Merchant must be able to provide the customer with a hard
copy of the authorization if requested to do so. Only the customer may authorize the WEB transaction, and not a Third -Parry Service Provider on behalf
of the customer. The NACHA Operating Rules include the use of a digital signature or code to similarly authenticate a written authorization. This does
not exclude other methods of similarly authenticating an authorization, such as shared secret passwords, biometrics, etc.
"WEB" CHECK CONVERSION OBLIGATIONS: Merchant agrees to comply with all NACHA Operating Rules (the "Rules"). The Rules are
incorporated herein by reference. The authorization shall conform to the requirements of the Rules for WEB based transactions as stated above.
Merchant shall retain a copy of such authorization for a period of two (2) years following the date the authorization is initiated. Merchant agrees and
acknowledges that it will assist in resolving all customer disputes in a timely manner, and will allow CORE to refer inquiring Financial Institutions directly
to Merchant, or to Merchant's supporting vendors, for information regarding the nature and conditions of each transaction initiated to the customer's
account.
TEL SALES PROCEDURES:
TEL ENTRY: A TEL entry is defined as a Single -Entry ACH debit entry to a Customer Account (personal DDA number) initiated in response to a
customer's oral authorization to a Merchant -Business, captured via the telephone, for goods or services provided by said merchant.
AUTHORIZATION REQUIREMENTS FOR TEL ACH ITEMS
Merchants originating TEL entries being submitted into the ACH Network for electronic settlement must adhere to the following requirement. A TEL
entry may be transmitted only in circumstances in which (1) there is an existing relationship between the Merchant and the customer, or (2) there is not
an existing relationship between the Merchant and the customer, but the customer has initiated the telephone call to the Merchant. A TEL entry may
not be used when the Merchant has initiated the telephone call. The Merchant and the customer are considered to have an existing relationship
when either (1) there is a written agreement in place between the Merchant and the customer for the provision of goods or services, or (2) the customer
has purchased goods or services from the Merchant within the past two years. For purposes of these "Rules', an affiliate of a Merchant that has an
existing relationship is not deemed to have an existing relationship with respect to TEL items.
TEL TRANSACTION OBLIGATIONS:
Merchant agrees to comply with all NACHA Operating Rules (the "Rules"). The Rules are incorporated herein by reference. Merchant agrees to obtain
the customer's explicit authorization prior to initiating a debit entry to a customer's account. Merchant need not provide the customer with a written
authorization for the customer to signor similarly authenticate. Instead, the Merchant may obtain the customer's authorization for a TEL entry orally via
the telephone. Merchant is obligated either to tape record the customer's oral authorization or to provide, in advance of the Settlement Date of the entry,
written notice to the customer that confirms the oral authorization. The customer must be provided, and must acknowledge, the following terms of the
transaction:
• The date on or after which the customer's account will be debited:
• The amount of the debit entry to the customer's account:
• The customer's name;
• A telephone number that is available to the customer and answered during normal business hours for customer inquiries;
• The date of the customer's oral authorization; and
• A statement by the customer that the authorization obtained from the customer will be used to originate an ACH debit entry to the customer's
account.
For an oral authorization obtained over the telephone to be in accordance with the requirements of the NACHA Rules, (1) the Merchant must state
clearly during the telephone conversation that the customer is authorizing an ACH debit entry to his account, (2) the Merchant must express the terms of
the authorization in a clear manner, and (3) the customer must unambiguously express consent. Silence is not express consent. The Merchant must
retain either the original or a duplicate tape recording of the customer's oral authorization OR a copy of the written notice confirming the customer's oral
authorization for two (2) years from the date of the authorization. Merchant must provide a copy of the customer's authorization when requested. A
Merchant using a voice response unit (VRU) to capture a customer's authorization for a TEL entry must understand that key -entry responses by the
customer to input data and to respond to questions does not qualify as an oral authorization. A VRU may be used by the customer to key enter data and
to respond to questions, provided that the actual authorization by the customer is provided orally. A Merchant that chooses the option to provide the
customer with written notice confirming the customer's oral authorization must disclose to the customer during the telephone call the method by which
such notice will be provided. The written notice must include, at a minimum, the six pieces of information required to be disclosed during the telephone
call, as described above. Merchant understands that the term 'provide' is intended to mean that the merchant has utilized a medium such as US mail,
fax, or other mail delivery, to send the written notice to the customer. Disclosure in electronic form, including e-mail, can be used however; state and or
federal laws may require customer consent before using electronic notices/disclosures. The term "provide" does not imply receipt of such notice by the
customer. Merchant also understands that when written notice is used to confirm the authorization, the customer must be afforded the right to contact
the Merchant, using the telephone number provide, to correct any erroneous information contained within the notice. In order to minimize the risk of
entry errors, Merchant agrees to use a commercially reasonable system, technology, practice, or procedure to verify, (A) that the routing numbers are
valid, and (B) the identity of the customer. Merchant agrees and acknowledges that it will assist in resolving all customer disputes in a timely manner,
and will allow CORE to refer inquiring Financial Institutions directly to Merchant, or to Merchant's supporting vendors, for information regarding the
nature and conditions of each transaction initiated to the customer's account.
POP SALES PROCEDURES
POP ENTRY: A POP entry is defined as a Single -Entry ACH debit entry to a Customer Account (personal DDA number) initiated directly to a Merchant -
Business, for goods or services provided by said merchant, and purchased in person. Written authorization (signed sales receipt) by customer must be
kept and retained by merchant for two years, as evidence and understanding of the nature of the POP transaction.
CHECK VERIFICATION: Each check tendered at the point of sale will be processed through CORE's national positive and negative database to help
Merchant decide whether to accept or decline the customer's check. Merchant agrees to use the check verification service solely for legitimate
Merchant business purposes at Merchant's business location(s) in connection with the presentment of customers' checks for the purchase of goods or
services from Merchant.
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POINT OF SALES PROCEDURES: Merchant agrees that in order for check data provided at the point of sale to be accurately compared with the
CORE database, Merchant must use a properly programmed and functioning check reader. As a result of information obtained through CORE, Merchant
shall immediately advise the customer whose check was declined, via a CORE referral card and/or copy of the printed receipt. Customer inquiries
concerning the reasons for decline and requests for assistance to correct the problem shall be directed to the reporting agency that communicated the
fact that the customer's check should be declined (i.e., not CORE).
account. The authorization shall conform to the requirements of the Rules which require that the authorization (1) be in writing and signed or similarly
authenticated by the customer using a digital signature or other code, (2) be readily identifiable as an EFT debit authorization, and (3) clearly and
conspicuously state its terms. Merchant shall provide the customer with a copy of the authorization at the time the authorization is obtained and shall
retain a copy of such authorization for a period of two (2) years following the date the authorization is signed. Merchant shall provide to the customer a
copy of his authorization, along with a receipt containing specific information relating to the transaction. Merchant shall not accept a check from a
customer as a source document for point -of -purchase entries unless the check is drawn on a customer account, has a pre-printed serial number, has not
been previously voided, and has not been previously negotiated by the customer. Merchant shall provide each customer with a transaction receipt at the
time and place of purchase. The receipt shall contain, at a minimum, the following information regarding each debit entry to be initiated to the
customer's account: (a) Merchant's name; (b) Merchant's telephone number; (c) the date of the transaction; (d) the amount of the transaction; (e) the
check serial number captured from the source document; and (f) the Merchant number or other unique number that identifies the location of the
transaction. Merchant shall void the check presented to Merchant by the customer in connection with each point -of -purchase transaction (i.e., the check
that has been used as the source document for information relating to the transaction), and return it to the customer. Merchant will return the check to
the customer voided after use by the Merchant to obtain the customer's routing number, account number and check serial number for the initiation of the
point -of -purchase entry. Merchant agrees to verify that the check presented by the customer has not been provided by the customer for use in any prior
point -of -purchase entry.
ARC SALES PROCEDURES:
ARC ENTRY: An ARC entry is a Single -Entry debit initiated by a Merchant -Business for the conversion of a customer check received via the US mail or
at a drop box location for the payment of goods or services provided by said merchant.
AUTHORIZATION REQUIREMENTS FOR ARC ACH ITEMS: Merchants originating ARC entries being submitted into the ACH Network for electronic
settlement must follow and adhere to the terms and conditions of this Agreement. The ARC entry is a single entry debit to a customer's account,
initiated by a merchant for payment of purchases made, where the customer mailed a check (used as a source document) to the merchant via the U.S.
mail or by placing the check in a drop box. The Merchant is required to use a reading device to capture the MICR line (routing number, account number,
and check serial number) of the source document (check) but may key enter the amount of the transaction. This application requires the Merchant to
provide, prior to the receipt of each check, notice to the customer that receipt of his check will be authorization for the check to be used as a source
document for an ACH debit transaction to the check writer's account at his financial institution.
ARC CHECK CONVERSION OBLIGATIONS: Merchant agrees to comply with all NACHA Operating Rules (the "Rules"). The Rules are incorporated
herein by reference. Merchant agrees to retain, or have retained on their behalf by an outside vendor, an image, microfilm, or other copy of the front of
the customer's source document for a period of two years from the Settlement Date of the entry. The original source document to which the ARC entry
relates must be destroyed by the Merchant within fourteen (14) days of the Settlement Date of the Entry. This requirement is to protect against the risk
that, by error, the source document might subsequently be entered into the check processing system for payment as a check.
Merchant agrees to notify the customer each time a bill is mailed that receipt of the customer's check will be deemed to be the customer's authorization
for an ACH debit entry to their account. So together the Biller's (merchant) provision of notice and the customer's mailed in check, allow for the ARC
entry. The notice must be on the individual customer's statement,
ADDITIONAL ARC CHECK CONVERSION OBLIGATIONS: All ARC entries must be originated so that the amount of the entry, the routing number,
the account number, and the check serial number accurately reflect the source document. No fees may be added to the amount of the source document
when it is transmitted as an ARC entry. Merchant shall accept responsibility for all items incorrectly entered into the settlement system which may return
as being unable to process, such items could be but are not limited to the earlier listed items not to be used as source documents. Merchant shall
strictly comply with all guidelines and rules established by CORE regarding the quality of data submitted to CORE, input schedules and deadlines and all
other matters pertinent to the processing and delivery of ACH entry data. Merchant agrees to perform a settlement (or Deposit) on each
terminal/software device used for ARC entries on a daily basis.
RETURN OF ARC ENTRY: Merchants assumes all responsibilities for returned items/ARC entries. While most ARC entries will be returned typically
within two to three banking days following the Settlement Date of the original ARC entry, there are situations in which entries can be returned by the
customer's financial institution for 60 days from the settlement date. One such scenario is when a customer places a stop payment on the source
document, instead of the ACH stop payment system. Other scenarios could be: 1) improper source document 2) no notice provided to customer that
check was going to be converted 3) source document was presented for payment as a check and 4) ARC entry was initiated in an amount other than
that indicated on the source document. Further merchant is aware that the NACHA Operation Rules restrict the number of times that any entry,
including ARC entries, returned for insufficient or uncollected funds may be reinitiated to no more than two times following the return of the original entry.
CHECK GUARANTEE SERVICE
CORE agrees to indemnify Merchant from losses on bad check returns for checks that were accepted through our electronic check conversion services.
Merchant agrees to accept checks for the sale of goods or services only, and not for cash advances or cash back transactions.
Checks to be covered must meet criteria (See Check Verification & Conversion Obligations) for electronic check acceptance, which means that the
check is received from the customer at the point of sale. The check writer's valid driver's license/photo ID must
(a) Must be presented to verify the signature on the check & receipt
(b) Must be keyed into the terminal to compare against the database and receive an authorization approval
The printed receipt must be signed by the customer to authorize the electronic collection of the check.
Checks excluded from the check guarantee program include, but are not limited to:
• Third Party Checks, credit card convenience checks, traveler's checks
• Blank Checks, Checks made out to "Cash", or where cash was disbursed; i.e. all checks must be made out to your business name as the
Payee
• Checks without preprinted customer name and street address
• Checks without a current phone number of the check writer
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• Checks where the signature on the check does not match the preprinted name on the face of the check
• The merchant has made a repeated attempt to process a check after a "Decline "response
• All "Warning — Manager Needed" messages which are overridden by the merchant. I.E. checks exceeding the dollar limits agreed upon
between CORE and the merchant while executing the agreement for the check guarantee program.
• Checks returned due to merchant fraud or lack of due care when...
Check processed electronically AND paper check deposited
Check processed electronically without the signed authorization of the customer
• Customer Disputes: Reg E claim and/or any Stop Payment of item
Merchant agrees that once enrolled they will receive NO DIRECT PAYMENTS from the check writer on outstanding items and shall direct the check
writer to CORE. Merchant will allow its returned items to be sent directly to CORE for processing. Merchant agrees all approved checks assigned under
this agreement shall become the property of CORE.
ADDITIONAL ITEMS
AGGREGATE LIMITS: In our discretion we may limit the aggregate dollar amount of your Entries for which final settlement is pending at any given time
("Aggregate Limits"). We will advise you when you enroll in the Service of your Aggregate Limits, and you agree not to exceed them. We may, in our sole
discretion, suspend the processing of, any Entries that exceed the Aggregate Limits, and will have no liability to you or any other party for doing so. You
agree to indemnify and hold us harmless from any claims arising out of or relating to our inability to process Entries that exceed the Aggregate Limits.
We will periodically review your Aggregate Limits and may, in our sole discretion, change them at any time. We will notify you of changes. At our request
from time to time, you agree to provide to us such information as we may reasonably require regarding your financial status, including, without limitation,
copies of your most recent financial statements.
NO LIABILITY FOR LOSSES: Merchant enrolled in CORE's Program, as indicated on the front section of this form, agrees and understands that
CORE is not guaranteeing or insuring any customer transactions. CORE has no liability for any losses the Merchant may incur as the result of a
customer transaction that has been authorized by the Merchant using CORE's service. CORE is not guaranteeing or insuring against bad -check losses.
CORE will not be liable to Merchant, customers or any third party for any failure, error or delay in performance. In no event will CORE be liable for
incidental, special or consequential damages incurred by Merchant or any other person or entity. Merchant shall be solely liable and responsible for all
damages, losses, expenses and claims arising from any of the following: (i) Duplication of images of deposited checks using the services; (ii) Alteration
of scanned images of deposited checks; (iii) Inaccurate or incomplete data captured from the deposited checks; (iv) Deposit of checks on accounts with
insufficient funds, counterfeit checks, fraudulent checks, or checks bearing unauthorized or forged endorsements; (v) Acts of fraud, negligence or willful
misconduct committed by employees, agents or subcontractors of Merchant in depositing checks using the services; (vi) Hardware failure or use of
scanner hardware not certified by CORE; or (vi) Failure to properly store or destroy original checks once the scanned image has been captured.
CUSTOMER INQUIRY ASSISTANCE: Merchant agrees to provide to CORE, or other requesting Financial Institutions or Government Agencies, all
supporting documents or materials (as required by merchant to keep as prior reference within this Agreement) being held in connection to customer
transactions generated under the terms of this agreement. Merchant further agrees to provide said records within 5 days of being notified by CORE or
other Institution. Merchant will supply records in the manner that will provide the fastest and clearest copy. This could be but is not limited to the
following: Fax, Email, or some other expedited postal -package delivery (i.e. USPS, FedEx or UPS); All expenses related to providing these items will be
the merchant's responsibility. Merchant agrees to take additional reasonable efforts to provide information supporting the transactions involving their
customer which the accuracy or question of its validity is being questioned.
ASSISTANCE IN REMEDYING ERRORS OR CUSTOMER ISSUES: In the event an error or apparent error exists in the CORE data which has been
supplied to Merchant, Merchant agrees to fully cooperate with CORE and its third -party service providers in an effort to clarify and if necessary rectify the
accuracy of the data in question.
TERM & TERMINATION: This Agreement will be effective as of the date it is accepted by CORE and will continue in effect for a term of three (3) years
following such date (the "Initial Term"), unless earlier terminated as provided for below. Following the Initial Term, this Agreement will automatically
renew for additional one year renewal terms (each, a "Renewal Term" and collectively with the Initial Term, the "Term"), unless earlier terminated as
provided for below. If either party desires not to renew the Agreement at the end of the Term, such party must provide written notice to the other parties
of its intent not to renew this Agreement at least thirty (30) days prior to the expiration of the Term or Term, as applicable. Either party reserves the right
to terminate this agreement with 30 days written notice to the other party. Additionally, CORE may immediately discontinue providing check processing
to Merchant in the event Merchant fails to comply with or otherwise breaches the terms of this Agreement. In the event Merchant has transaction returns
that exceed 8% of their monthly volume, CORE may, at its option, terminate this Agreement. In the event Merchant stops conducting business in the
normal course, becomes insolvent, or becomes subject to proceedings under the Federal Bankruptcy Act. CORE may, at its option, immediately
terminate this Agreement. In the event Merchant provides written notice to cancel, or verbal notice to cancel CORE services and Merchant continues to
utilize CORE services, Merchant will continue to be charged for transaction activity.
INDEMNIFICATION: To the extent permitted by law, Merchant shall indemnify and hold harmless CORE, their agents and employees against and from
all actions, suits, losses, liabilities, damages, costs, and expenses, including court costs and attorneys' fees, relating to or arising from any and all claims
asserted against CORE due to negligence or misuse by Merchant in its use of CORE services.
PRICING: Merchant agrees to pay CORE, according to the "Fee Schedule" set forth herein and pursuant to CORE's usual fee schedule for any other
services, CORE's fees for services performed under this Agreement. CORE reserves the right to change the service or the service fees with 30 days
written notice to Merchant. Further, merchant agrees to pay CORE for any fees, fines, or penalties that result, or could result, from violations or
sanctions assessed or levied by the NACHA Organization due to merchant not following these stated rules or from any improper compliance of these
rules by merchant.
REPRESENTATIONS: Merchant represents and warrants with respect to all entries we process for you that: (a) EACH Customer has authorized the
debiting and/or crediting of his, her, or its account and also for the collection of any returned check or transaction check fees, (b) EACH entry is for an
amount agreed to by the Customer, (c) EACH entry is in accordance with the rules and properly authorized in all other respects. Merchant agrees to
defend, indemnify, and hold Processor and all its agents harmless for any losses, liabilities, legal action costs or expenses we incur as a result of any
breach of these representations and warranties either intentionally or unintentionally by Merchant. Merchant shall cease initiating Entries immediately
upon receiving actual or constructive notice of the termination or revocation by the Receiver of authority. Merchant may use Processors system to block
accounts from being processed, but processor bares not responsibility in the event that processors system fails to filter blocked transactions on behalf of
Merchant.
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THIRD PARTY PROCESSING SERVICES: CORE third party processing services partners are providing some of the services specified in this
Agreement, and as a result, these third party services partners shall be an intended third party beneficiary of this Agreement between CORE and
Merchant. Each third party services partner shall have the right to enforce directly against Merchant, the terms of this Agreement which relate to the
provision of the third party services partner's processing services to Merchant and the ownership and protection of the intellectual property rights of the
third party services partner and its licensors in and to its processing services. Merchant acknowledges that the third party services partners shall have no
responsibility or liability with regard to Reseller's obligations to Merchant under this Agreement.
The third party processor used to provide this service is:
GOVERNING LAW AND VENUE: THIS SUB -MERCHANT AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE IN WHICH SUB -
MERCHANT IS LOCATED.
ENTIRE AGREEMENT: This Agreement makes up the entire agreement between the parties concerning CORE's ACH services. If any provision of this
Agreement is deemed unenforceable, the remaining provisions shall remain enforceable. If there is more than one Merchant named on the Processing
Agreement each and every so named Merchant is bound by the signing thereof.
Merchant acknowledges that they have read and understands the Terms and Conditions of this Agreement, including the provisions
contained on all pages hereof, and the information provided is accurate.
Customer and CORE have entered into this Addendum as of
Customer: Wonderware Inc. d/b/a CORE Business Technologies
By: By:
Name: Name:
Title: Title:
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SPECIAL PROVISIONS FOR AMERICAN EXPRESS ADDENDUM
This SPECIAL PROVISIONS FOR AMERICAN EXPRESS ADDENDUM (this "Addendum") is made a part of the terms and conditions of the SUB -MERCHANT
SERVICES AGREEMENT between ("Customer") and Wonderware Inc. d/b/a CORE Business Technologies
("CORE") dated (the "Sub -Merchant Agreement"), and applies to American Express Card acceptance (capitalized terms herein not defined elsewhere in
the Sub -Merchant Agreement shall have the meanings assigned in the American Express Operating Regulations). Customer's participation in American Express Card
acceptance is subject to the approval of American Express. With respect to participation in an American Express acceptance program, in the event of a conflict between
the terms of this Addendum and other terms of the Sub -Merchant Agreement, the terms below shall control.
1. Rules. Customer shall be bound by the American Express Operating Regulations, including the Merchant Operating Guide which is located at:
www.americanexDress.com/merchantoD2uide ("MOG"). The provisions of the MOG are incorporated herein by reference.
2. Transaction Data. Customer authorizes CORE and/or its affiliates to submit American Express transactions to, and receive settlement on such transactions
from, American Express on behalf of Customer.
3. Data Security Requirements. Customer shall comply with the data security requirements of protecting Cardholder information set forth in Section 8 of the
MOG.
4. Treatment of American Express Cardholder Information. Customer shall treat acknowledges that any and all American Express Cardholder information is
confidential and the sole property of the Card issuer, American Express or any of its affiliates. Except as otherwise specified, Customer must not disclose
Cardholder information, nor use nor store it, other than to facilitate transactions at Customer's establishments in accordance with the Sub -Merchant Agreement.
5. Disclosure and Use of Data Collected Under the Sub -Merchant Agreement. CORE may disclose to American Express data and information that CORE
collects as part of performing American Express payment processing services or transaction related services including information about Customer, as further set
forth in Section 2.7 of the MOG. American Express may use such information for purposes set forth in Sections 2.7 and 2.8 of the MOG.
6. Conversion to American Express Direct Customer. Customer acknowledges that it may be converted from the American Express Card acceptance program
to a direct relationship with American Express if and when its transaction volumes exceed the eligibility thresholds for the program. If this occurs, upon such
conversion, (i) Customer will be bound by American Express' then -current Card acceptance agreement; and (ii) American Express will set pricing and other fees
payable by Customer.
7. Assignment of Transactions. Customer shall not process transactions or receive payments on behalf of, or (unless required by applicable law) re -direct
payments to, any third party.
8. American Express as Third Party Beneficiary. Notwithstanding anything in the Sub -Merchant Agreement to the contrary, American Express shall have
third -party beneficiary rights, but not obligations, to the terns of the Sub -Merchant Agreement applicable to American Express Card acceptance to enforce such
terms against Customer. Customer acknowledges that it is not a third parry beneficiary under the agreement between American Express and CORE for the provision
of American Express payment processing services or transaction related services to Customer (the "AMEX TPSP Agreement").
9. Termination of American Express Card Acceptance. You acknowledge that CORE shall be required to terminate Customer's participation in American
Express Card acceptance if the TPSP Agreement terminates for any reason or American Express terminates CORE's authorization to provide the payment processing
services. In the event Customer's participation in the program is terminated for any reason, Customer must immediately remove all American Express branding and
marks from Customer's website and wherever else they are displayed.
10. Billing and Refund Policies. Customer's billing and refund policies for American Express purchases must comply with Sections 4.11 and 7.4 of the MOG
11. Acceptance of American Express. Customer must accept American Express as payment for goods and services in accordance with Section 3.1 of the MOG,
the Sub -Merchant Agreement and this Addendum. Customer covenants not to engage in the activities listed in the second paragraph of Section 3.2 of the MOG.
12. Inquiries and Chargebacks. Customer must comply with the requirements set forth in Section 11 of the MOG relating to the processes for chargebacks and
inquiries.
13. Specific Industries. Customer must comply with the industry -specific requirements of Section 12 of the MOG.
14. Discounts or In -Kind Incentives. Customer may offer discounts or in -kind incentives from Customer's regular prices for payments in cash, ACH funds
transfer, check, debit card or credit/charge card, provided that Customer complies with the requirements of the third paragraph of Section 3.2 of the MOG.
15. Display of American Express Marks. Whenever payment methods are communicated to customers, or when customers ask what payments are accepted,
Customer must indicate Customer's acceptance of American Express Cards and display American Express' marks as prominently and in the same manner as any
other Card networks. Customer's use of the American Express marks shall be in accordance with the third paragraph of Section 3.2.1 of the MOG.
American Express Addendum v1.2
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16. Confidentiality of Cardholder Information. Any and all Cardholder information is confidential and the sole property of the applicable Card issuer, American
Express or its affiliates. Except as otherwise specified, Customer must not disclose Cardholder information, nor use nor store it, other than to facilitate transactions at
Customer's business locations and websites in accordance with the Sub -Merchant Agreement.
17. Website Information Display. Customer's business website must display the following: (a) an accurate description of the goods/services offered, including
the currency type for the transaction (e.g., U.S. Dollars) (note: transaction currency must be in U.S. Dollars); (b) Customer's physical address in the U.S.; (c) an
email address or telephone number for customer service disputes; (d) return/refund policy; (e) a description of Customer's delivery policy (e.g., no overnight
delivery); (f) a description of Customer's security practices (e.g., information highlighting security practices the Customer uses to secure transactions on its systems,
including transactions conducted on the Internet); (g) a statement of known export restrictions, tariffs, and any other regulations; and (h) a privacy statement
regarding the type of personal information collected and how the information is used. Additionally, Customer must provide to its customers the option to decline
being included in marketing campaigns or having their personal information included on lists sold to third parties.
18. Customer Service Information. Customer will maintain customer service information that is readily available for review by Cardholders transacting with
Customer. The customer service information will provide clear instructions on how to contact CORE or Customer, including an active customer service email
address and telephone number.
19. Compliance with Laws. Customer will at all times comply with applicable laws, rules and regulations related to the conduct of Customer's business.
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20. Claims. A claim against American Express, or a claim against CORE or any other entity that American Express has a right to join in resolving a claim, will be
resolved through arbitration in accordance with Section 13 of the MOG.
21. American Express Limitation of Liability. IN NO EVENT SHALL AMERICAN EXPRESS OR ITS AFFILIATES, SUCCESSORS, OR PERMITTED
ASSIGNS BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECULATIVE, CONSEQUENTIAL,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT
LIABILITY, FRAUD, OR OTHERWISE, OR STATUTES, REGULATIONS, OR ANY OTHER THEORY) ARISING OUT OF OR IN CONNECTION WITH
CUSTOMER'S PARTICIPATION IN THE PROGRAM, EVEN IF ADVISED OF SUCH POTENTIAL DAMAGES. AMERICAN EXPRESS WILL NOT BE
RESPONSIBLE TO CUSTOMER FOR DAMAGES ARISING FROM DELAYS OR PROBLEMS CAUSED BY TELECOMMUNICATIONS CARRIERS,
INTERNET SERVICE PROVIDERS, OTHER COMMUNICATIONS NETWORKS OR THE BANKING SYSTEM, EXCEPT THAT ITS RIGHTS TO CREATE
RESERVES AND EXERCISE CHARGEBACKS WILL NOT BE IMPAIRED BY SUCH EVENTS. CUSTOMER FURTHER AGREES TO ABIDE BY THE
LIMITATION OF LIABILITY PROVISIONS IN THE AMEX TPSP AGREEMENT.
22. American Express Right to Modify or Terminate Agreement. American Express has to the right to modify the Sub -Merchant Agreement with respect to
American Express transactions or to terminate Customer's acceptance of American Express transactions and to require CORE to investigate Customer's activities
with respect to American Express transactions.
Except as otherwise amended pursuant to this Addendum, the Sub -Merchant Agreement remains in full force and effect in accordance with its terms. This
Addendum may be executed in one or more counterparts (including by means of signature pages transmitted via PDF or other electronic means), each of which shall
be deemed an original and all of which shall be taken together and deemed to be one instrument.
Customer and CORE have entered into this Addendum as of
Customer: Wonderware Inc. d/b/a CORE Business Technologies
By:
Name
Title:
By:
Name:
Title:
American Express Addendum v1.2