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HomeMy WebLinkAboutAgreement - Paymentus - Clerks - Signed 2020-10-08Paymentus MASTER SERVICES AGREEMENT Client: Client Address: Contact for Notices to Client: Estimated Yearly Bills / Invoices: City of Gilroy, CA 7351 Rosanna Street, Gilroy, CA, 95020 Bryce Atkins 191,760 This Master Services Agreement ("Agreement") is entered into as of the Effective Date below, by and between the Client identified above ("Client") and Paymentus Corporation, a Delaware corporation ("Paymentus"). WHEREAS Paymentus desires to provide and Client desires to receive certain services under the terms and conditions set forth in this Agreement. Paymentus provides electronic bill payment services to utilities, municipalities, insurance and other businesses. NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby covenant and agree as follows. This Agreement consists of this signature page, General Terms and Conditions, and the schedules listed below: Schedule A: Paymentus Service Fee Schedule Schedule B: Paymentus Service Fee Schedule, Additional Services This Agreement represents the entire agreement between the parties with respect to its subject matter and supersedes all prior written or oral agreements or understandings related to its subject matter and may be changed only by agreements in writing signed by the authorized representatives of the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. Client: Paymentus: __._:--- B . f� By: Name: ()t wiv" ( E . FoPL(5i5 J Name: Title: 1.��Q4r & C J,a wV0', 54e4--. b: Date: 11i12-0 Jerry Portocalis Title: Senior Vice President Date: 10-8-20 Master Services��ggAgreement Bt �hi�N�TAr 4 sagietory Page 1 of 11 190110 Paymentus GENERAL TERMS AND CONDITIONS 1 Definitions: For the purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. 1.1 "Agreement "or "Contract" shall refer to this Agreement, as amended from time to time. 1.2 "Approved Payment Types" shall mean credit and debit means of payment, such as Visa®, MasterCard®, Discover®, E-check and other payment methods as deemed necessary by Paymentus, except as excluded on Schedule A. 1.3 "Average Bill Amount" shall mean the total amount of Payments processed through Paymentus in a given month divided by the number of the Payments for the same month. 1.4 "Effective Date" shall be the last date upon which the parties signed this Agreement. The Agreement will not be effective against any party until that date. 1.5 "Excess Payment Amount" shall mean the amount by which the total of all Payment Amounts from Non -Qualified Transactions processed in a calendar month exceeds 5% of the total of the Payment Amounts of all card Payments processed that month. 1.6 "Fee Assumptions" shall mean information used to calculate the Paymentus Service Fee (as defined in Section 3.2.1), including the projected Average Bill Amount, projected payment method mix (credit vs debit vs e- check) and that the total Payment Amount processed each month resulting from Non - Qualified Transactions shall not exceed 5% of the total Payment Amount of all card Payments processed that month. 1.7 "Initial Setup" shall mean the first personalization and activation of the standard service as specified during the implementation process. Master ServicesryAgreement ERA' ai �'N' (Agra etary 1.8 "Launch Date" shall be the date on which Client launches the Services to the Users. 1.9 "Non -Qualified Transaction" shall mean (i) a Payment made with a card generally issued for business use that results in interchange fees or other processing charges assessed by a Paymentus Authorized Processor or card association that are higher than those charged for transactions with cards issued for consumer use; or (ii) a Payment that does not qualify for reduced interchange fees under programs that Client may be participating in. These high -cost cards may include, among others, corporate cards, virtual cards, purchase cards, business cards, and travel and entertainment cards. 1.10 "Payment" shall mean payment by a User through the Platform for Client's services, Client's bills, or other amounts owed to Client. 1.11 "Payment Amount" shall mean the amount of a Payment. 1.12 "Paymentus Authorized Processor" shall mean a Paymentus authorized merchant account provider and payment processing gateway. 1.13 "Reversed or Charged -back Transactions" shall mean cancelled transactions due to User error, a User's challenge to Payment authenticity, or action by a financial institution or a Paymentus Authorized Processor (commonly referred to as ACH or eCheck returns or credit/debit card chargebacks). 1.14 "Services" shall mean the performance of the payment and related services by Paymentus as set forth in Section 2 of this Agreement. 1.15 "User" shall mean the users of Client's services. 2 Description of Services to be Performed Page 2 of 11 190110 Paymentus 2.1 Scope of Services Paymentus shall provide Users the opportunity to make Payments by Approved Payment Types. Payments may be made by Interactive Telephone Voice Response System ("IVR") or secure Internet interface provided at the Paymentus web site or other websites that are part of Paymentus' Instant Payment Network ("Websites"), collectively referred to as the ("System" or "Platform"). Paymentus will be the exclusive provider to Client of services included in the Services. 2.2 Professionalism Paymentus shall perform in a professional manner all Services required to be performed under this Agreement. 3 Compensation 3.1 No Fee Installation Paymentus will charge no fees related to the Initial Setup of either or both of the Web and IVR interfaces to its standard service. 3.2.1 Paymentus Service Fee Paymentus will charge each User a Service fee for each Payment ("Paymentus Service Fee") as provided in Schedule A. The Paymentus Service Fee is to be collected in addition to the corresponding Payment as part of the transaction. For each Payment, the Paymentus Service Fee will be collected and Paymentus will pay the corresponding processing and related fees of the Approved Payment Types ("Transaction Fees") except for fees related to Reversed or Charged -back Transactions. A schedule of Paymentus Service Fees is attached as Schedule A. The Paymentus Service Fee is based on the Fee Assumptions. Paymentus may amend Schedule A upon prior written notice to Client if a change is caused by changes in the card or payment system rules or changes in credit card fees, if the Fee Assumptions prove to have been materially incorrect, or if there is an Excess Payment Amount during any 2 months out of a rolling 6 month period. The amended Service Fee shall take effect 30 days after written notice to Client. 4 Payment Processing 4.1 Integration with Client's Billing System At no charge from Paymentus to Client, Paymentus will develop two (2) file format interface with Client's billing system, one (1) using Client's existing text file format currently used to post payments to Client's billing system, and a second with Client's new financial software currently in development to be integrated upon its deployment. Client will be responsible to provide Paymentus with the one file format specification for the current financial software in use, another specification when the new financial software is deployed, and will fully cooperate with Paymentus during the development of said interfaces. If Client chooses to create an automated file integration process to download the posting file, due to Paymentus security requirements, Client will use Paymentus specified integration process. The Paymentus platform is an independent full service fully hosted platform per PCI-DSS requirements for a fully hosted solution. As such, the Paymentus platform does and can function independent of any billing system integration. A payment posting file can be emailed or downloaded from the Paymentus Agent Dashboard. If Client chooses to have the Paymentus platform integrated with its billing system, Paymentus offers two options: (i) Paymentus standard integration specification that Client can use to integrate its billing systems with Paymentus platform ("Standard Integration"); or (ii) Paymentus to either customize or configure its platform to integrate with Client using file specification or APIs supported by Client's billing system ("Client Specific Integration"). If Client chooses Standard Integration, Paymentus agrees to fully cooperate with Client and provide its specification to Client. Paymentus also agrees to participate in meetings with Client's software vendor to provide any information or clarifications needed to understand Standard Integration. Paymentus agrees to provide all integration/interface specifications within 30 days from the Effective Date. Client will take commercially reasonable steps to develop the integration within 60 days from the date on which Client has received all integration specifications from Paymentus. If Client chooses Client Specific Integration, Paymentus agrees to develop that integration at no charge from Paymentus to Client, provided however, Client agrees to fully cooperate with Paymentus and Master Services�gAgreement a �� r Z'crg ietary Page 3 of 11 190110 Paymentus cause its software vendors and other service providers to fully cooperate with Paymentus. Client agrees to provide all specifications required for Client Specific Integration. Client further agrees to participate in testing with Paymentus and if needed, cause its billing software vendors and other service providers to participate in testing. Client agrees to provide or make available all integration/interface specifications within 30 days from the Effective Date. Paymentus will take commercially reasonable steps to develop the integration within 60 days from the date on which Paymentus has received all the integration specifications from Client or its vendors. Parties agree that if the parties do not cooperate fully, it can lead to each party being unable to perform its duties to deliver the integration in time. Based on Client's use of the Paymentus platform and its respective modules selected under this Agreement, Paymentus will require the following integration points: (i) For one-time Payment Module: a. Customer Information — Text File or Real- time b. Payment Posting — Text File or Real-time (ii) For Recurring Payment Module a. Text File (iii) For E-billing Module a. Billing Data - Text File or Real-time link to billing data (iv) For Outbound Notification a. Audience File — Text File for customer engagement messages Each of these can be based on Standard Integration or Client Specific Integration. The Initial Setup for the Web or IVR interface will be considered complete when the first Standard Integration or Client Specific Integration, as applicable, is completed such that Paymentus and Client are able to exchange files relevant to that interface, as contemplated in this Section 4.1. In the event the Services are implemented without integration, the Initial Setup will be considered Master Services Agreement r 6sEplietary complete when a User is able to access the Paymentus website or IVR to process a payment. 4.2 Enhancements The parties agree that the Services are provided on a "platform as a service" basis, and not as a result of custom software development. Paymentus' standard Platform will be personalized to achieve certain additional functional requirements of Client, as clarified and agreed during implementation ("Enhancements"). Enhancements may include some or all of the features included in any technical requirements or similar document provided to Paymentus. The parties will fully co-operate with one another to: a) ensure that requirements with respect to Enhancements are clarified as needed; b) accept Paymentus proposed reasonable alternatives to achieve Client's functional objectives within the limits of the Paymentus platform; and c) accept Paymentus' reasonable estimates of time for completion, designs and plans with respect to agreed Enhancements. There will be no fee charged by Paymentus to Client for Enhancements, provided Paymentus designs and plans are accepted by Client. If the Services are to be offered at multiple locations, or if the Services include multiple Enhancements, the parties will agree to a phased implementation. 4.3 PCI Compliance For PCI Compliance, Client agrees to use Paymentus' fully hosted service where Paymentus uses its own platform to capture Payments and to manage the entire (end to end) user experience from the following channels for Payment acceptance: Web, Mobile, IVR, POS devices operated by Client's employees (per Paymentus recommended setup), recurring payments, Ebill Presentment ("Paymentus Fully Hosted Solution"). Paymentus shall not be responsible for any PCI obligations outside of Paymentus own platform and Paymentus expressly disclaims any PCI or security obligations related to Client systems or any third party systems that participate in the payment transactions that are outside of Paymentus Platform. 4.4 Explicit User Confirmation Paymentus shall confirm the dollar amount of all Payments, and when paid by the User, the corresponding Paymentus Service Fee to be charged Page 4 of 11 190110 Paymentus to a card and electronically obtain the User's approval of the charges prior to initiating card authorizations transaction. Paymentus will provide User with electronic confirmation of all transactions. 4.5 Merchant Account Paymentus will arrange for Client to have a merchant account with the Paymentus Authorized Processor for processing and settlement of the card transactions. 4.6 Card Authorization For authorization purposes, Paymentus will electronically transmit all card transactions to the appropriate card -processing center, in real time as the transactions occur. 4.7 Settlement Paymentus together with its authorized card processor shall forward the payment transactions, and when paid by User, the corresponding Paymentus Service Fee to the appropriate card organizations for settlement (other than the Paymentus Service Fee) directly to Client's depository bank account previously designated by Client (hereinafter the "Client Bank Account"). When as provided in Schedule A Client pays the Paymentus Service Fee, Paymentus will invoice Client and debit the fees from Client's account on a monthly basis. Paymentus together with the Paymentus Authorized Processor will continuously review its settlement and direct debit processes for its simplicity and efficiencies. Client and Paymentus agree to fully co- operate with each other if Paymentus were to change its settlement and invoicing processes. 4.8 Reversed or Charged -back Transactions With respect to all Reversed or Charged -back Transactions Client authorizes Paymentus and Paymentus Authorized Processor (and/or the respective card organizations) to debit the Client Bank Account for the Payment Amount and Paymentus shall refund to the card organization for credit back to the User the corresponding Paymentus Service Fee, if any. Paymentus together with Paymentus Authorized Processor will continuously review its processes for Reversed or Charged -back Transactions for simplicity and efficiencies. Client and Paymentus agree to reasonably co-operate with each other if Master Services Agreement Avoietary Paymentus requires any change to its settlement and invoicing processes for these transactions. 5 General Conditions of Services 5.1 Service Reports Paymentus shall provide Client with reports summarizing use of the Services by Users for a given reporting period. 5.2 User Adoption Communication by Client Client will make Paymentus' Services available to its residential and commercial Clients by different means of Client communication including a) through bills, invoices and other notices; b) by providing IVR and Web payment details on Client's website including a "Pay Now" or similar link on a mutually agreed prominent place on the web site; c) through Client's general IVR/Phone system; and d) other channels deemed appropriate by Client. Paymentus shall provide Client with logos, graphics and other marketing materials for Client's use in its communications with its users regarding the Services and/or Paymentus. Both parties agree that Paymentus will be presented as a payment method option. Client will communicate the Paymentus option to its end residential and commercial Clients wherever Client usually communicates its other payment methods. 5.3 Independent Contractor Client and Paymentus agree and understand that the relationship between both parties is that of an independent contractor. 5.4 Client's Responsibilities In order for Paymentus to provide the Services outlined in this Agreement, Client shall co-operate with Paymentus by: (i) Entering into all applicable merchant card, cash management, ACH origination, or kiosk agreements. (ii) Keeping throughout the duration of this Agreement a bill payment link connecting to Paymentus System at a prominent and mutually agreed location on Client's website. The phone number for IVR payments will Page 5 of 11 190110 Paymentus also be added to the web site. Client will also add the IVR payment option as part of Client's general phone system. (iii) Sharing User Adoption marketing as described in Section 5.2. (iv) Launching the Service within 30 days of the merchant account setup. (v) Dedicating sufficient and properly trained personnel to support the implementation process and its use of the Services in compliance with all laws applicable to its use of the Services. (vi) Providing Paymentus with the file format specification currently used to post payments to the billing system to allow Paymentus to provide Client with a posting file for posting to Client's billing system. (vii) Fully cooperating with Paymentus and securing the cooperation of its software and service providers and providing the information required to integrate with Client's billing system. 6 Governing Law This Agreement shall be governed by the laws of the state of California, without giving effect to any principles of conflicts of law. This Agreement is entered into in Santa Clara County, California, and venue for any action arising out of this Agreement shall be proper in any state or federal court located in Santa Clara County. 7 Miscellaneous 7.1 Authorized Representative Each party shall designate an individual to act as a representative for the respective party, with the authority to transmit instructions and receive information, The parties may from time to time designate other individuals or change the individuals. 7.2 Notices All notices of any type hereunder shall be in writing and shall be given by Certified Post or a national courier or by hand delivery to an individual authorized Master Services Agreement �NfTA ngcalietary to receive mail for the below listed individuals, all to the following individuals at the following locations: To Client CIO: Bryce Atkins Address: 7351 Rosanna Street, Gilroy, CA, 95020 Email: brvice.atkins(a.citvofc ilrov.orq To Paymentus C/O: President and CEO Address: 13024 Ballantyne Corporate Place Suite 450 Charlotte, NC 28277 Email: ceo a(�pavmentus.com Notices shall be declared to have been given or received on the date the notice is physically received. Any party by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which the notice is to be received. 7.3 interpretation It is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 7.4 Amendment of Agreement Modifications or changes in this Agreement must be in writing and signed by the parties to this Agreement. 7.5 Severability If a word, sentence or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence or paragraph shall be severed from this Agreement, and this Agreement shall be read as if said word, sentence or paragraph did not exist so as to effect the original intent of the parties as closely as possible so that the transactions and agreements contemplated herein are consummated as originally contemplated to the fullest extent possible. 7.6 Third Party Beneficiaries There are no third party intended beneficiaries of this Agreement. 7.7 Counterparts Page 6 of 11 190110 Paymentus This Agreement may be executed in counterparts, each of which shall be deemed an original. 7.8 Attorney's Fees Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 7.9 Confidentiality Client will not for any purpose inconsistent with this Agreement disclose to any third party or use any information clearly designated in writing by Paymentus as proprietary non-public information, including but not limited to the fee schedules attached as Schedules A and B to this Agreement, which Paymentus represents is a trade secret as defined in Civil Code Section 3426.1. it has obtained during the procurement process or during the term of this Agreement about Paymentus' business, including the terms of this Agreement, operations, financial condition, technology, systems, know-how, products, services, suppliers, clients, marketing data, plans, and models, and personnel. Paymentus will not for any purpose inconsistent with this Agreement or its privacy policy in effect from time to time disclose to any third party or use any confidential User information it receives in connection with its performance of the services; provided, however, that Paymentus agrees and understands that Client is subject to the California Public Records Act. . 7.10 Intellectual Property In order that Client may promote the Services and Paymentus' role in providing the Services, Paymentus grants to Client a revocable, non- exclusive, royalty -free, license to use Paymentus' logo and other service marks (the "Paymentus Marks") for this purpose only. Client does not have any right, title, license or interest, express or implied in and to any object code, software, hardware, trademarks, service mark, trade name, formula, system, know-how, telephone number, telephone line, domain name, URL, copyright image, text, script (including, without limitation, any script used by Paymentus on the IVR or the Website) or other intellectual property right of Paymentus ("Paymentus Intellectual Property"). All Paymentus Marks, Paymentus Intellectual Property, and the System and all rights therein (other than rights expressly granted herein) and goodwill pertain thereto belong exclusively to Paymentus. 7.11 Force Majeure Paymentus will be excused from performing the Services as contemplated by this Agreement to the extent its performance is delayed, impaired or rendered impossible by acts of God or other events that are beyond Paymentus' reasonable control and without its fault or judgment, including without limitation, natural disasters, war, terrorist acts, riots, acts of a governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine restrictions, floods, explosions, labor strikes, labor walk -outs, extra -ordinary losses utilities (including telecommunications services), external computer "hacker" attacks (provided that Paymentus has taken commercially reasonable steps to avoid such attacks), and/or delays of common carrier. 8 Indemnification 8.1 Paymentus Indemnification and Hold Harmless Paymentus agrees to the fullest extent permitted by law, to indemnify, and hold harmless Client and its governing officials, agents, employees, and attorneys (collectively, the "Client lndemnitees") from and against all third -party liabilities, demands, losses, damages, costs or expenses (including reasonable attorney's fees and costs), incurred by any Client lndemnitee as a result or arising out of (i) the willful misconduct or negligence of Paymentus in performing the Services; (ii) a material breach by Paymentus of its covenants; or (iii) any matter arising out of Client's nondisclosure of information designated by Paymentus as a confidential trade secret in response to a third party request under the California Public Records Act. Without limiting the foregoing, Paymentus shall indemnify, defend and hold harmless the Client lndemnitees against any claim that the work performed or material provided hereunder infringes or violates the patent, copyright, or trade secret rights of any third party. Paymentus shall pay any and all resulting costs, expenses (including attorney's fees), damages and/or liabilities associated with or resulting from any such claim. 8.2 Client Indemnification and Hold Harmless Client agrees to the fullest extent permitted by law, to indemnify and hold harmless Paymentus, its affiliates, officers, directors, stockholders, agents, employees, Master Services Agreement t�NN7�r aPj ietary Page 7 of 11 190110 Paymentus and representatives, (collectively, the "Paymentus Indemnitees") from and against all third- party liabilities, demands, losses, damages, costs or expenses (including without limitation reasonable attorney's fees and expenses) incurred by any Paymentus Indemnitee arising from a claim or demand brought by a third party to the extent the claim or demand relates to the underlying relationship or obligations of Client and its Users. 8.3 Warranty Except as expressly set forth in this Agreement, Paymentus disclaims all other representations or warranties, express or implied, made to Client or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness, for a particular purpose or otherwise of any services or any good provided incidental to the Services provided under this Agreement. 8.3 Limitation of Liability Notwithstanding the foregoing, neither party shall be liable for any lost profits, lost savings or other special, indirect or consequential damages, even if it has been advised of or could have foreseen the possibility of these damages In no event will either party be liable for any losses or damages resulting from the sole negligence or willful misconduct of the other party or from the acts, omissions or errors of third parties not under the control of that party.. and Paymentus shall not be liable for providing agreements, instructions or information to Users as instructed by Client. Paymentus' total liability for damages for any and all actions associated with the Agreement or the Services will in no event exceed (i) for an error or other action affecting the processing of one or more Payments, the amount of the Paymentus Fee Master Services Agreement E�Av�a�1 �i�AtAgggietary associated with each Payment, (ii) for other claims, the amount of the Paymentus Fee (net of direct processing and other fees paid by Paymentus) paid to Paymentus ("Net Fees") in the six (6) months before the events given rise to the claim or claims arising from the same circumstances; and (iii) in no event more than the lesser of $1,000,000.00 or the Net Fees under the Agreement. 9 Term and Termination 9.1 Term The term of this Agreement shall commence on the effective date of this Agreement and continue for a period of 5 (five) years ("Initial Term") from the Launch Date. Services under this Agreement shall begin within 30 days of the merchant account setup. 9.2 Material Breach A material breach of this Agreement shall be cured within sixty (60) business days ("Cure Period") after a party notifies the other of the breach. In the event the material breach has not been cured within the Cure Period, the non -breaching party can terminate this Agreement by providing the other party with a 30 business days' notice. 9.3 Upon Termination Upon termination of this Agreement, the parties agree to cooperate with one another to ensure that all Payments are accounted for and all refundable transactions have been completed. Upon termination, Paymentus shall cease all Services being provided hereunder unless otherwise directed by Client in writing. Page 8of11 190110 Paymentus Schedule A — Paymentus Service Fee Schedule (CONFIDENTIAL) Paymentus Service Fee charged to the User will be based on the following model: Convenience Fee Model o Utility Payments o Average Bill Amount: $160.00 o Paymentus Service Fee • Convenience Fee $3.50 per Visa, MasterCard, Discover, American Express, and debit transaction; echeck/ACH transaction o Solution Components Include: • Online Quick Pay • Self -Service Customer Portal • Pay-by-Email/Secure PDF eBills • Paperless eBilling • Hosted IVR/Automated Phone Payments • PayPal, Venmo, PayPal Credit; Amazon Pay • Agent Dashboard • Outbound Customer Notifications Chargebacks and returned checks will be billed at $9.95 per chargeback/returned check. Note: Maximum Amount per Payment is $650.00. Multiple payments can be made. Paymentus may apply different limits per transactions for user adoption or to mitigate risks. The Paymentus Service Fee shall be charged to the User for all utility payments, including in -person credit card transactions, consistent with requirements of California Proposition 218 (California Constitution — Article XIIIC) and California Proposition 26 (California Constitution — Article XIIIA). Master SSeerrvvices Agreement E����1NAr 4Pro1 i eta ry Page 9 of 11 190110 Paymentus Convenience Fee Model o Non -Utility Government Payments o Average Bill Amount: varies o Paymentus Service Fee • Credit/Debit Card 2.95% per Visa, MasterCard, Discover, American Express, and debit transaction • ACH/ eCheck $0.75 per echeck/ACH transaction o Solution Components Include: • Online Quick Pay • Self -Service Customer Portal • Pay-by-Email/Secure PDF eBills • Paperless eBilling • Hosted IVR/Automated Phone Payments & Secure Service • PayPal, Venmo, PayPal Credit; Amazon Pay • Agent Dashboard • Outbound Customer Notifications Chargebacks and returned checks will be billed at $9.95 per chargeback/returned check. Note: Maximum Amount per Payment is $25,000.00. Multiple payments can be made. Paymentus may apply different limits per transactions for user adoption or to mitigate risks. Master Services Agreement gA Agdwietary Page 10 of 11 190110 Paymentus Schedule B: Paymentus Service Fee Schedule, Additional Services (CONFIDENTIAL) Additional Services ❑ Outbound Notifications include: ❑ 1,500 phone, email, and SMS messages per month included at no additional cost; $0.20 per additional message ❑ Swipe device readers: • Three (3) at no cost; EMV devices start at $310.00 Master Services Agreement Pr 4Psmietary Page 11 of 11 190110