007-10 - Resolution - Contract with Springbrook Software for Web Payment ServiceIntroduced by :
Requested by:
Drafted by:
Introduced:
Adopted:
RESOLUfiON NO. 007-10
City Treasurer
City Treasurer
City Treasurer
January 26, 2010
January 26, 2010
A RESOLUfiON OF THE CI1Y OF PORT ORCHARD, WASHINGTON,
AUIHORIZING THE MAYOR TO EXECUfE AN AGREEMENT WITH
SPRINGBROOKSOFIWARE, INC FOR WEB PAYMENT SERVICE
WHEREAS, the effective and efficient management of the City's cash resources
requires expeditious revenue collection and aggregation; and
WHEREAS, the use of credit cards/debit cards has become customary business
practice to improve cash management that the City should consider and use when appropriate;
and
WHEREAS, the policies, procedures, and practices of cash management should be
reviewed and revised as required to ensure the City achieves the most effective cash
management possible; and
WHEREAS, the City recognizes the necessity to best accommodate its citizens by
facilitating their payment of utility bills and other payment of other city services by accepting
credit/debit cards; now, therefore;
THE CITY COUNCIL OF THE CI1Y OF PORT ORCHARD, WASHINGTON,
HEREBY RESOLVES AS FOLLOWS:
THAT: The City Council hereby approves the Springbrook Web Payments
Agreement No. Co24-10, And Addenda, attached hereto as Exhibit A and by this
reference incorporated herein.
FURTHER THAT: The City of Port Orchard authorizes the Mayor to execute a
24 month agreement (Exhibit A incorporated by reference) with Springbrook
Software, Inc. for the use of credit/debit cards for payment of city utilities and
other city services.
PASS ED by the City Council of the City of Port Orchard, SIGNED by the May/r apelilltested
by the Clerk in authentication of such passage this 26th day qf January-·r o. · ,./
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f(t~ringbrook WEB PAYMENTS AGREEMENT 2009
SPRINGBROOK SOFTWARE
WEB PAYMENTS AGREEMENT
This Springbrook Software, Web Payments Agreement (the "Agreement") is made and entered into as of December 11, 2009 by and
between Springbrook Software Inc, a Oregon corporation having its principal place of business at 111 SW Fifth Avenue, Suite 1850,
Portland, Oregon 97204 (''Licensor) and Port Orchard, a Washington corporation having its principal place of business at 216 Prospect
Street, Port Orchard WA, 98366 (''Licensee").
This Agreement consists of the General Terms and Conditions a set forth below:
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS.
"Change Order'' means a written request to change the terms or
scope of a Statement of Work.
cccitizens" Citizens consumers and others designated by the
Client to access Web Payments services
"Client Data" means any and all data and information of any
kind or nature submitted to Licensor by Licensee, or received by
Licensor on behalf of Licensee, in connection with the Service,
other than publicly available information.
_''Enhancement" means any modification or addition that, when
made or added to the Software, materially changes its utility,
efficiency, functional capability, or application, but that does not
constitute solely an Enor Correction. Licensor reserves the
right to designate any Enhancement released by Licensor after
the Effective Date as a new version of the Software or as a new
software application, and to condition release and right of access
and use of the new application or version upon Licensee's
payment of an adjusted Service Fee.
''E!!!l!'' means any failure of the Software to conform in any
material respect to its published specification.
''Error Correction, means either a modification or addition
that, when made or added to the Software, brings the Software
into material conformity with its published specifications, or a
procedure or routine that, when observed in the regular
operation of the Software, avoids the practical adverse effect of
such nonconformity.
"Licensed Software" means the machine-readable, object-code
version of the software licensed by Licensor, including ~ related
Documentation and any modified, updated or enhanced versions
of the program that Licensor may provide to Licensee, as set
forth in the Order Form.
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"Professional Services" means implementation, trat.ru.ng,
installation, data recovery, migration, restoration services, and
other professional services provided by Licensor to Licensee, but
specifically excluding Support Services and Managed Services.
"Project Coordinator" means that project coordinator,
designated by Licensee, in connection with Professional Services.
"Releases" means new versions of the Software, which may
include Error Corrections and/ or Enhancements.
"Source Code" means the human-readable version of a software
program than can be compiled into Executable Code.
"Statement of Work" means a statement of work. signed by the
parties pursuant to which Licensor provides Professional
Services to Licensee.
"Temporary Fix" means an initial correction or "fix" to a
·problem in the Software prior to the release of an ettor
correction.
"Third Party Vendors" mean vendors chosen by Springbrook to
provide solutions and services provided for in this Agreement.
2. SCOPE OF AGREEMENT.
The Service provided by Software Vendor to Licensee pursuant
to this Agreement shall consist of the Web Payments services, as
set forth on the appropriate order form and shall include:
2.1 Online Payments.
The Service will allow Citizens to make payments and perform
certain other functions via a website or webpage hosted and
maintained by Vendor and/or its agents, accessible by hotlink
from Licensee's own website, as set forth in the appropriate
Order Form. Licensee agtees to use only such vendors which are
subject to an agreement between the licensee and the merchant
services providers, for merchant banking services. For purposes
of the credit card and similar transactions, Licensee shall act as
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merchant, and Lcensee shall be solely responsible for
maintaining its merchant relationship with such providers, and
for all payments related to that merchant relationship. Such
merchant relationship is subject to the terms of the agreement
signed between Licensee and the vendor and not subject to the
terms and provisions of this Agreement. Licensee agrees to only
use merchant services providers approved by Licensor.
2.2 Software.
Operation of the Service requires installation and maintenance
of Licensed Software on servers maintained by Licensee on
licensee's premises. As used in this Agreement, the Software is
limited to the most current released version of the Licensor's
payment application, and includes any updates to the Software as
made available by Licensor. The Software does not include new
software applications, substantially new versions of any software
application, or services necessary to implement new applications
or versions of the applications. Licensee agrees that Licensor
may designate any software application released by Licensor
after the executed Agreement as a new version or a new
application, and those additional fees may be required for any
such new version or application.
2.3 Rights of Access and Use.
Licensor grants Licensee a tenninable, non-exclusive and non-
transferable right to access and use the Service solely for
Licensee's internal business needs (tncluding access by Citizens
via password protected acconnts), subject to the terms and
conditions herein.
2.4 Professional Services.
2.4.1 Statements of Work.
If Licensee desires to engage Licensor to provide Professional
Services, Licensee and Licensor shall enter into a Statement of
Work that describes the specific services to be performed by
Licensor. The terms and conditions set forth in this Agreement
apply to all Professional Services rendered by Licensor. If there
is a conflict between the provisions of this Agreement and a
Statement of Work, the relevant provisions of this Agreement
will control unless the Statement of Work expressly provides
otherwise. Following execution of a Statement of Work,
Licensee may request changes to the scope of the Professional
Services described therein by sending to Licensor a Change
Order. Licensor will review the Change Order and notify
Licensee in writing of any financial or schedule change required
to implement the Change Order. The Change Order will not be
binding wtless agreed upon in writing by both parties.
2.4.2 Performance of Services.
Unless the Professional Services are such that they must be
performed at Licensee's premises, Licensor may perform the
Professional Services at Licensor's or Licensee's place of
business, at Licensor's option. Ucensees are responsible for all
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WEB PAYMENTS AGREEMENT 2009
travel expenses related to perfonnance of services under this
agreement. Licensor will have sole discretion to determine
personnel assigned to perform the Professional Services.
2.4.3 Client Prqject Coordinator.
Licensee shall designate a Project Coordinator in each Statement
of Work. The Project Coordinator will have the authority to
bind Licensee in all matters with respect to this Agreement and
any Statements of Work, including, without limitation, directing
Licensor to perform work, agreeing to additional work or
changes outside the scope of a Statement of Work, approving all
Licensor delivered services and committing Licensee to pay for
all work the Project Coordinator has directed Licensor to
perform.
2.4.4 Access.
If Professional Services are performed at Licensee's place of
business or via electronic means, Licensee shall provide Licensor
personnel with the necessary access to hardware and other
systems as well as reasonable office space. Licensee warrants that
it owns all right, title and interest in and to, or has full and
sufficient right and authority to use in the manner contemplated
by this Agreement and any Statement of Work, any hardware,
software, programming, materials or data furnished or made
available by Licensor to Ucensee in connection with Licensor's
performance of this Agreement.
2.4.5 Intellectual Property Rights.
Licensor or its third party· providers do and will at all times own
all Intellectual Property Rights related to the Professional
Services, the Deliverables and all documentation related to the
foregoing, prov:ided that upon full payment to Licensor for all
amounts due from Ucensee hereunder, Licensee will have a
nonexclusive and nontransferable license to use such Deliverables
for its own internal use for the business activities generally carried
out by Ucensee. 1hls non exclusive and non ttansferable license
is only valid while this agreement is in effect. All computer
software and other materials owned by Licensor and used by
Licensor in conjnnction with the Professional Services or
incorporated into the Deliverables will belong exclusively to
Licensor or its third party providers, whether or not they were
specifically adapted by Licensor for use by Licensee. Any
concepts, ideas, know-how or techniques developed during the
course of this Agreement or any Statement of Work by Licensor,
or jointly by Licensor and Licensee, will be the exclusive property
ofUcensor.
3. FEES AND PAYMENT
3.1 Fees.
Fees paid by Licensee are in consideration of the rights of access
and use granted in Section 2, as set forth in the appropriate
Order Form or Statements of Work. The Service Fees do not
include services or goods not expressly described in this
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Agreement. Except as otherwise expressly stated herein, all fees
paid heretu1der are nonrefundable and will be forfeited on a pro-
rated basis, in the event of cancellation or termination. Licensor
reserves the right to change the Fees as set forth on the
appropriate order form. In addition, Licensee shall reimburse
Licensor for any expenses, including travel expenses incurred in
the performance of Professional Services. Except as specifically
set forth in this Agreement, all fees are non-refundable.
3.2 Payment.
Payments due under this Agreement shall be made in U.S.
currency in the amonnts and at the times set forth in the
applicable Order Form or Statement of Work or, if not indicated
therein, within thirty (30) ~ays of the date of invoice. If Licensee
fails to timely pay any amount when due, Licensee shall pay, in
addition, interest at the rate of one and one half percent (1 %%)
per month, but not to exceed the maximum allowed by law, on
such delinquent amonnt.
3.3 Taxes.
All Fees are exclusive of any sales, value-added, foreign
withholding or other government taxes, duties, fees, excises, or
tariffs imposed on the production, storage, licensing, sale,
transportation, import, export, or use of the Products or
performanCe of any services (collectively, "Taxes"). Licensee is
responsible for paying any taxes to the appropriate agency. If the
Licensor is assessed taxes related to services provided under this
agreement, Licensee will be responsible for, and will reimburse
Licensor within thirty (30) days of request for, all such Taxes and
any related penalties, except for taxes imposed on licensor's net
income.
3.4 Expenses.
Licensee is responsible for all its Internet connection charges,
calling activities and phone bills related to its use of the
Products.
4. CONFIDENTIALITY & OWNERSHIP
4.1 Obligations.
Each party acknowledges that, in the course of the performance
of this Agreement, it may obtain the Confidential Information of
the other party. Confidential Information disclosed pursuant to
this Agreement will be subject to the terms of this Agreement
during the Term of this Agreement and after Expiration or
Tennination of this agreement. Recipient shall take all reasonable
steps to prevent the nnauthorized disclosure of and maintain the
confidentiality of the Confidential Information of Discloser.
Recipient shall not disclose the Confidential Infonnation of
Discloser to any employees or third parties except to Licensor's
third party providers, employees (including independent
contractors), subsidiaries and consultants of Recipient who have at
least an equivalent confidentiality obligation to Recipient and who
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WEB PAYMENTS AGREEMENT 2009
have a need to know such Confidential Information on condition
that Recipient shall be liable for any breach by such individual or
entity. However, the parties acknowledge and agree that,
notwithstanding such measures taken to prevent unauthorized
disclosure, use of or connection to the Internet provides the
opportunity for unauthorized third parties to circumvent such
precautions and illegally gain access to Confidential Information.
Accordingly, Recipient cannot and does not (and nothing in this
Section 4.1 or this Agreement is intended to) guarantee the
privacy, security or authenticity of any information so
transmitted over or stored in any system connected to the
Internet. The Confidential Information disclosed hy Discloser
may only be used by Recipient as necessary to perfoon its
obligations or exercise its rights under this Agreement.
4.2 Client Data.
Licensee shall remain the sole and exclusive owner of all Client
Data All such, Client Data shall be subject to regulation and
examination by the appropriate auditors and regulatory agencies
to the same extent as if such information were on licensee's
premises.
4.3 Vendor Systems, Service and Confidential Information.
Licensee acknowledges that it has no rights in the Service,
including without limitation any software, systems, artwork,
methods, documentation, guidelines, procedures and similar
related materials or any modifications thereof provided by
Licensor, and including material displayed on any Service
website such as icons, screen displays, and the assembly and
arrangement thereof, except with respect to and as limited by
Licensee's access and use of the same during the term of this
Agreement.
4.4 Exceptions.
The obligations set forth herein will not apply to any information
that is in response to a valid order by a court or other
governmental body, or (li) otherwise required by law, will not be
considered to be a breach of this Agreement or a waiver· of
confidentiality for other purposes; provided, however, that
Recipient will provide prompt written notice thereof to
Discloser to enable Discloser to seek a protective order or
otherwise prevent such disclosure.
5. LICENSEE RESPONSffiiLITIES.
Licensee acknowledges that operation of the Service requires
Licensee's effort and cooperation, and that in addition to its
other obligations under this Agreement, Licensee assumes the
following responsibilities.
5.1 Set-Up, Training.
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Licensee shall use its best efforts to facilitate and participate in
SeiVice Set-Up, and afford Licensor reasonable access to
information, equipment and facilities as requested by Licensor.
Licensee ·shall requite all of Licensee's personnel who use the
Service to complete any training prescribed by licensor at the
time of implementation. Subsequent training of new personnel
after implementation is not included in this agreement.
5.2 Equipment Maintenance.
Licensee shall maintain hardware and software, including non-
Licensor hardware or software, at Licensee's site as
recommended by Licensor for operation and use of the Service.
Ucensee, at its expense, shall also maintain its own website,
which shall feature a hotlink icon by which Citizens can access
the Service website or webpage hosted by Licensor. Licensor
may, at its discretion, provide a standard web page that appears
to belong to Licensee but is actually housed on licensor's
website.
5.3 Account Access, Creation and Termination.
Licensee shall exercise control over acconnt access, creation and
termination, and shall be solely responsible for assigning account
passwords, creating or terminating acconnts, allowing Citizens to
open accounts, and for controlling acconnt and password
security. The Service shall restrict access to each Citizen account
to users who enter the assigned acconnt password, but otherwise
~censor shall not be responsible or liable for controlling access
to or misuse of accounts.
5.4 Monitor and Store Data.
Licensee shall verify account data accuracy on a regular basis,
and asswnes sole responsibility for maintaining data backup
systems of systems located at the client site or managed and
maintained but the client. Licensee shall immediately inform
Licensor of any account data inconsistency, errors or corruption.
5.5 Release of Licensee or Citizen Records.
Licensee shall assume responsibility for responding to and
determining the validity of any requests or demands, whether
from a court, a regulatory or other governmental agency, or the
public, for the release of any Licensee or Citizen Records or data
in Licensors contra~ or possession. Licensor shall not release
any such records or data to any party without written
authorization by Licensee, unless compelled to do so by a court
or agency of competent jurisdiction. In the event that Licensor
needs to release client information to defend a claim against
Licensor, Licensor shall inform Licensee of any such required
disclosure prior to disclosure, and seek approval to release
information.
5.6 Citizen Support.
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WEB PAYMENTS AGREEMENT I 2009
Licensee asswnes sole responsibility for providing all support
setVices to Citizens, and shall be the sole contact for all support
requests from Citizens. Client shall not refer any Citizen to
Licensor directly for support requests, but may communicate
such requests to Licensor together with contact information for
the requesting Citizen. Licensor may, in its discretion, respond
directly to the Citizen or provide a response to Licensee, and
may deem any such response support not covered by regular
Maintenance and Support to be billed as an additional fee to
Licensee at Licensors hourly rates.
5.7 Credit Card Charge-backs.
Licensee assumes liability for, and indemnifies Licensor and its
agents, against any claims or charges by any bank or credit card
company for charge-backs related to any Citizen payment via the
Service, and any claims or charges by any bank or: credit card
company for online payment processing fees related to online
payments to Licensee.
6. LICENSOR RESPONSmLITES
Licensor shall provide support and maintenance related to the
Software on the following terms and conditions:
6.1 Scope of Maintenance.
During the term of this Agreement, Licensor shall provide Basic
Maintenance services in support of the Software. Basic
Maintenance services shall consist of:
6.2 Downtime.
Licensor shall make its best efforts to limit Service downtime
caused by maintenance, upgrades or repairs, to two (2) hours per
incident, and shall make its best efforts to post on the Service
website the expected downtime and the time at which service
will be restored.
6.3 Error Correction.
Licensor will use all reasonable diligence to correct verifiable and
reproducible Errors within a reasonable time period after
reported to Vendor. The Error Correction, when completed,
may be provided in the form of a "temporary fix," consisting of
sufficient progranuning and operating instructions to implement
the Error Correction.
6.4 Telephone Support.
Licensor shall provide support during normal business hours
(7:00am -5:00pm PS1) that permits Licensee to report Errors in
the Software or Service access and to receive assistance.
Licensor reserves the right to bill hourly (following Licensee's
prior approval) for maintenance in cases of repeated operator
error, or where a single operator error results in substantial effort
by Licensor to resolve the problem.
6.5 Changes in State and Federal Regulations.
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Licensor may provide updates needed to conform to state and
federal regulations, including changes to tax tables and routine
forms. Maintenance services under this Agreement do not
include updates to conform to any changes in local
govemmental regulations, including without limitation changes
in utility billing rates, reports or methods.
6.6 Routine Releases.
Licensor may, from time to time, issue Routine Releases of the
Software, containing Error Corrections and Enhancements.
Routine Releases will be made available to licensees who have
subscription agreements in place, as soon as reasonably possible,
at times and on conditions to be established by Licensor.
Licensor reserves the right to designate any Release as routine or
non-routine.
6.7 Exceptions.
The following matters are not covered by Basic Maintenance,
and are outside the scope of services provided pursuant to this
Agreement:
6.7.1 Onsite support by employees or agents of Licensor;
6. 7.2 Training users in the proper operation of the Software
and the Service;
6.7.3 Any problem resulting from Licensee's misuse, improper
use, alteration, or damage of the Software, unless
approved by Licensor in writing;
7. INDEMNIFICATION.
7.1 By Licensee.
In addition to indemnification pursuant to Section 5. 7 ., Licensee
shall indemnify and hold Licensor harmless from and against any
claims, demands, causes of action, debt or liability, including
reasonable attorneys' fees (the "Claims"), to the extent that the
Claims are based upon:
7 .1.1 the protection or disclosure of, or any request or demand
to view, any account or payment records, data or
information (other than disclosures caused solely by
Licensor acting other than upon Licensee's instructions,
including without limitation instructions regarding
applicable laws or regulations);
7 .1.2 compliance with any laws or regulations reqwnng
clisclosures to any Citizen; and
7 .1.3 Acts of Licensee using the Services in breach of law or
regulation, or contrary to any term of this Agreement.
7.1.4 Willful misconduct or Gross Negligence of Licensee
7.2 By Licensor.
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Licensor shall indemnify and hold Licensee harmless from and
against any claims, demands, causes of action, debt or liability,
including reasonable attorneys' fees (the "Claims"), to the extent
that the Claims are based upon;
7 .2.1 A claim that any of the website content provided solely
by Licensor infringes or violates any intellectual property
rights of any third party; or
7.2.2
7.2.3
7.2.4
8.
8.1
Willful misconduct or gross negligence of Licensor.
A claim resulting from Third Party Vendors
maintain Payment Card Industry Data
Association Requirements (PC!)
failure to
Security
A claim resulting from Third Party Vendors failure to
maintain appropriate compliance with 2003 Fair and
Accurate Creclit Transactions Act Sections 114 and 315.
TERM; DEFAULT; RENEWAL.
Term.
This Agreement is effective upon execution and shall continue
for a term as set forth in the order form, (the "Initial Term'').
This agreement will automatically renew at the end of the Initial
Term or a subsequent term for a period of 12 months. The
Client must notify the vendor within 30days of the end of a
Term that they wish to terminate this agreement.
8.2 Termination
Either party may terminate this Agreement upon delivering
notice of termination for any material breach of this Agreement
by the other, provided such notice;
8.2.1 sets forth the grounds for termination, and;
8.2.2 gives the breaching party thirty (30) days to cure the
breach, and;
8.2.3 Notwithstanding that a party gives notice of tennination,
such termination shall not be effective if the breach is
cured prior to expiration of the thirty (30) day notice
period, and the terminating party is notified of the cure
within the notice period.
8.3 Renewal
Effective upon the expiration of the Initial Term, and the
expiration of each Renewal Term (as defined herein) thereafter,
this Agreement shall be automatically renewed for successive
Terms of 12 months each (each such successive term a ''Renewal
Term"), unless contrary notice is given by either party at least
sixty (60) days prior to the expiration of the initial term.
9. LIMITED WARRANTY AND EXCLUSIONS.
LICENSOR WARRANTS THAT IT HAS TITLE TO THE
INTELLECTUAL PROPER1Y USED IN THE SERVICE
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AND THAT IT HAS AUTHORITY TO GRANT THE
RIGHT OF ACCESS AND USE HEREIN TO LICENSEE.
LICENSOR ALSO WARRANTS THAT, DURING THE
TERM OF THIS AGREEMENT, THE SOFTWARE WILL
FUNCTION IN CONFORMITY WITH THE
DESCRIPTION AND SPECIFICATIONS CONTAINED IN
THIS AGREEMENT AND THE ATTACHMENTS
HERETO, AND THAT ALI.. SERVICES RENDERED
HEREUNDER SHALL BE PERFORMED IN A GOOD
AND WORKMANLIKE MANNER. VENDOR MAKES NO
WARRANTY REGARDING THE USABILITY OR
CONVERTABILITY OF ANY OF LICENSEE'S PRE-
EXISTING DATA. liCENSEE AGREES THAT THE
FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES OF LICENSOR AND LICENSOR
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, THAT THE
OPERATION OF THE SERVICE WILL BE FREE FROM
ERRORS OR INTERRUPTION, OR THAT THE
LICENSEE DATA WILL BE FREE FROM CORRUPTION
OR LOSS.
10. LIMITATION OF REMEDIES AND LIABILITY;
EXCLUSION OF CONSEQUENTIAL DAMAGES.
The cumulative liability of Ucensor to Licensee for all claims
telating to the Software and any services rendered hereunder, in
contract, tort, or otherwise, shall not exceed the total amount of
the Fees, as set forth in the order form paid to Licensor during
the six (6) months immediately preceding the date Licensee
informs Licensor of the claim. licensor's liability for breach of
warranty exists only during the warranty period set forth in
Section 9. In no event shall Licensor be liable for any
consequential, indirect, special or incidental damages (including,
without limitation, damages for loss of business profits, business
interruption, loSs of business information, or other pecuniary
loss), whether arising out of contract, tort, warranty or
otherwise. The foregoing limitation of liability and exclusion of
certain damages shall apply regardless of the success or
effectiveness of other remedies, and applies to claims pursuant
to the limited warranty created under this Agreement.
11. GENERAL
11.1 Taxes.
In addition to the Service Fees and other fees payable hereunder,
Licensee shall be liable for any federal, state, county, local or
other governmental taxes, duties and excise taxes, now or
hereafter applied on the use of the Service including sales tax,
use tax, value added tax or similar tax.
11.2 Entire Agreement.
This Agreement, including the Product Addenda and any Order
Forms or Statements of Work, constitutes the entire agreement
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WEB PAYMENTS AGREEMENT I 2009
between the parties and supersedes all previous and
contemporaneous agreements, understandings and arrangements
with respect to the · subject matter hereof, whether oral or
written.
11.3 Amendment.
This Agreement may be amended or supplemented only by a
writing that refers explicitly to this Agreement and that is signed
by both parties.
11.4 Waiver.
No term or provision hereof will be considered waived by either
party, and no breach excused by either party, unless such waiver
or consent is in writing signed on behalf of the party against
whom the waiver is asserted. No consent by either party to, or
waiver of, a breach by either party, whether express or implied,
will constitute a consent to, waiver of, or excuse of any other,
different, or subsequent breach by either party.
11.5 Severability.
If any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in
any way. The Parties agree that any invalid provision will be
deemed to be restated so as to be enforceable to the maximum
extent permissible under law consistent with the original intent
and economic terms of the invalid provision.
11.6 Relationship of Parties.
The parties to this Agreement are independent contractors.
There is no relationship of agency, partnership, joint venture,
employment or franchise between the parties. Neither party will
have, and will not represent that it has, any power, right or
authority to bind the other party, or to assume or create any
obligation or responsibility, express or implied, on behalf of the
other party or in the other party's name.
11.7 Non-Exclusive Relationship.
Tills Agreement is non-exclusive. Each party will be free to enter
into other similar agreements or arrangements with other third
parties.
11.8 Assignment.
Neither party will indirectly or directly transfer or assign any
rights under this Agreement, in whole or part, without the prior
written consent of the other party. Notwithstanding the
foregoing, the Licensor may, without the prior written consent
of the other party, assign this Agreement to a subsidiary or
affiliated entity as part of a divestiture, corporate reorganization
or consolidation or to another party in connection with a
merger, acquisition, or sale of substantially all assets or stock to
which this Agreement relates, provided the successor agrees in
writing to assume all of the assigning party's obligations
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herennder. Any assignments contrary to this Section 11.7 will be
void. Subject to the foregoing, this Agreement will bind and
inure to the benefit of the parties and their respective successors
and pennitted assigns.
11.9 Compliance With Laws.
Each party shall be responsible for its own compliance with
laws, regulations and other legal requirements applicable to the
conduct of its business and this Agreement, and agrees to
comply with all such laws, regulations and other legal
requirements.
11.1 0 Force Majeure.
Except for Licensee's payment obligations under this
Agreement, neither party will be liable for any failure or delay in
performance under this Agreement which might be due in whole
or in part, directly or indirectly, to any contingency, delay, failure,
or cause of, any nature beyond the reasonable control of such
party. Such causes include, without in any way limiting the
generality of the foregoing, fire, explosion, earthquake, storm,
flood or other weather, unavailability of necessary utilities or raw
materials, power outage, strike, lockout, unavailability of
components, activities of a combination of workmen or other
labor difficulties, war, act of terrorism, insurrection, riot, act of
God or the public enemy, law, act, order, export control
regulation, proclamation decree, regulation, ordinance, or
instructions of goverrunent or other public authorities, or
judgment or decree of a court of competent jurisdiction (not
arising out of breach by such party of this Agreement). If,
however, a party's performance is prevented for ninety (90) days
or more, then the other party will be entitled to terminate this
Agreement on written notice to the party suffering the force
majeure at any time prior to resumption of performance by the
party suffering the force majeure.
11.11 Inspections.
Licensee will pennit Licensor or its representatives to review
Licensee's relevant records and inspect Licensee's facilities and
systems to ensure compliance with the Agreement, approrpate
Order Forms or Statements of work. Licensor will give Licensee
at least ten (10) days advance notice of any such inspection and
will conduct the same during normal business hours in a manner
that does not unreasonably interfere with Licensee's normal
operations.
11.12 GoverningLaw.
This Agreement will be governed. by and construed under the
laws of the United States, the State of Oregon, and Multnomah
County. 1bis Agreement will be deemed to have been made and
entered into in Multnomah County, Oregon.
11.13 Dispute Resolution and Jurisdiction.
Page7
WEB PAYMENTS AGREEMENT I 2009
The parties will attempt to resolve any dispute relating to this
Agreement by good faith negotiation between business
principals. Thereafter, the parties will submit their dispute to a
mutual agreed to Judicial Arbitror and Mediator
11.14 Attorneys Fees.
In the event any attorney is employed by any party to this
Agreement with regard to any legal action, arbitration or other
proceeding brought by any party for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, then the party or parties prevailing in such
proceeding, whether at trial or upon appeal, will be entitled to
recover reasonable attorneys' fees and other costs and expenses
incurred, in addition to any other relief to which it may be
entitled.
11.15 Notices.
All notices, consents, and approvals under this Agreement must
be delivered in writing by courier, by overnight mail service or
by certified or registered mail, (postage prepaid and return
receipt requested) to the other party at the address set forth
beneath such party's signature and will be effective upon receipt.
Either party may change its address by giving written notice of
the new address to the other party.
11.16 Press Release.
In the event that Licensor wishes to issue a press release
announcing the existence of the relationship between the parties
and the nature of this Agreement, Licensor will provide such
press release to Licensee for Licensee's written approval and
consent. Such approval and consent will be in Licensee's sole
discretion. No other press releases that mention the other party
shall be issued without the other party's prior written approval
Licensee agrees to allow Licensor to list client as a customer.
11.17 Construction of Agreement.
Tills Agreement has been negotiated by the respective parties
hereto and their attorneys and the language hereof will not be
construed for or against any party. The titles and headings herein
are for reference purposes only and will not in any manner limit
the construction of this Agreement, which will be considered as
a whole.
11.18 Counterparts and Electronic Signatures.
This Agreement may be executed in one or more counterparts,
each of which will be deemed an original and all of which will be
taken together and deemed to be one instrument. Each party
agrees that electronic or facsimile signatures of authorized
representatives of either party will be binding for the purposes of
executing this Agreement.
Web Payments Agreement~ Version 5~24--09
f{l~ringbrook WEB PAYMENTS AGREEMENT 2009
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in duplicate by its duly authorized officer or
representative .
Licensor
By:
Signature:___.o::::;...~-'""~~....::....-...,..::"""''---------
Name (Print): __ __.___.__,~~~-"--""""":........,._,.....c...::=-..:"=i'+---
Tide: ----{--f...4'-'=:,J::::......-JJ-..:.>LJ.:~~LC~~::::::::~,...----
Date:
Page 8 I
Licensee
By:
ATTEST:.
Web Payments Agreement -Version 5-24-09
f{(~ringbrook . Web Payments Order Form 2009
Onellme Setup Fee
Onellme
On e llme
Monthly Fee
Springbrook Software, Inc.
Web Payments Order Form
$0.05
FREE
FREE
FREE
Citizen will charged $1.00 transaction fee to use the web payment service for each transaction performed through the web paxment
service. Client may opt to pay this fee in lieu of the citizen paying the fee .
Services not specifically identified by this Order Form, or identified in the Springbrook Software as Service Agreement, And Addenda
are considered out of scope and may incur additional costs .
This order form is issued pursuant to the terms and conditi ons set forth in the Springbrook Web Payments Agreement and addenda
thereto. Client also agrees that services not defined in this agreement or order form may incur additional costs. By signing below the
client agrees by the terms of this order form and the agreement referenced above.
LICENSOR :
By:
Signature: _.::;:.::~:...:e-~=7'-~-r----------
Name {Print). _.L..,..L.l,.e:::..:...~~.;;;:.~~=-:::r-===--___,'-r--
litle: ---~~~......::.-..l....;>J..I..--"':;__...;:::,.~..:o...;~.::;...:,.--
o6/o7 /zo!0'.
Pa ge 1 I
LICENSEE :
By :
ATTES T:
Web Payments Order Form -Ver 5-24-09