HomeMy WebLinkAboutElectronic Transactions Systems Corp Addendum
To the
Electronic Transactions Systems Corporation Agreement
With Merehants Participatina in EMoney Program
The parties hereby agree to modiFy the agreement.For the provision of SMART Platform,eGift
Cazd Platform.ACH/EFT Platform,eInvoicing Platform, eShop, eMarketplace,and EMoney
POS (any one or more of these shail be defined as the "Services") by ETS to the City of Aubum
as follows:
1. Paza�raph 4 shall be modified to read:
During the Term and for a period of seven(7) years thereafter(except for non-
public information about cazdholders,applicants or other consumers of ETS,or
any other ETS Affiliate, which shall be maintained in confidence indefinitely),
Merchant shall maintain Confidential Information (defined below), unless
compelled other�+��ise bv law. in strict confidence and shalL (i) use Confdgntial
[nformation only in relation to the Services provided herein by ETS; (ii) not
copy any Confidential Information except in relation to the Ser4ices provided
herein by ETS; (iii) not disclose Confdential Information to any third party
except as expressly permitted in writing by ETS and then only if such third
party has executed a non-disclosure agreeipent in form and substance
satisfactory to ETS; (iv) limit dissemination of Confidential Information to
Personnel with a "need to know" in relation to the Services proyidea herein by
ETS;and (v)advise ETS promptly in writing of any unauthorized disclosure or
use of Confidential Information and take all steps requested by ETS to address
such unauthorized disclosure or use. Meicliant shall return all Confidential
Information to ETS upon the earliest to occur of; (i) the end of the Term; and
(ii) upon ETS's demand. Merchant acknowled�es and aarees that any tireach of
the confidentiality provisions of this Agreement will cause ETS immediate
irreparable harm for which moneta;y damages will not provide full and
adequate relief, entitling ETS to immediate injunctive relief in addition to any
other right or remedy that ETS may have at law or in equity. "Confidential
[nformation" means all, or any part of, and originals or copies of, any in
inforination, data, plans, materials, processes, methodologies and concepts, in
whatever form embodied (e.g., oral, written, electronic) provided by or owned
by ETS or any ETS Aftiliate; including any and all non-public information
about cardholders, applicants or other consumers of ETS, or any other ETS
Affiliates, no matter how �r hy what party such information, materials, or
concepts were transmitted, but excluding information that at the time of
disclosure Merchant can prove by docuriientary evidence was part of the public
domain(through a source othe.r than Merchant) and information that Merchant
can prove by documentary evidence was known by Merchant prior to disc:losure
by ETS (as evidenced by written records). Me�cliant shall not be deemed to
have violated this paragraph if it discloses Confidential Information in response
to a bona fide subpoena or other lawful process issued by a court oT agency of
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competent jurisdiction , rovided Merchant shall have R' I
P arven ETS at least thirty
(30) days' advance written notice of its intention to make such disclosure or as
soon as reasonably possi.ble after ieceipt of a subpoena or other lawful process
issued by a court or agency of competent jurisdiction. Merchant will notify ETS
within 24 hours after it knows of any breach in security resulting in an
unauthorized access to Confden;ial Inforination. Merchant will provide any
assistance that ETS and its regulatorsand the Card Associations deem necessary
to contain and control the incident to prevent furtherunauthorized access to or
use ofConfidential Information. Such a"ssistance may include,but not be limited
to, preservin� records and other evidence apd compiling information to enable
ETS or the Cazd Associations to investigate the incident and provide assistance
and cooperation to:( a)file suspicious activity repoi2s(as applicable);(b)notify
their regulators (as applicable); and (c) notify the affected igdi4id�a1 (as
required). Unless the unauthorized access was due to ETS's acts oromissions,
Merchant will bear the cost of notifying aYfected individiials.
2. Paragraph 7 shall be modified to read:
ETS shall have no liability for the use by Merchant of the Services, including
but without limitation, errant use of the Servicas, credits due to third parties as
a result of Ivlerchant's use of the Services,or any other aspect of the MerchanYs
use of the Services, including erroTs caused by ETS or acts or omissions of ETS
in providing the Services. ETS shall no[ be liable for any incidental or
consequential damages whatsoe0er. Moreover, ETS's entire liability under any
claim (under either a contract or tort claim)shall be limited to the amounts paid
by Merchant to ETS for the Services in the hveive months prior tosuch claim
azising. Merchant shall defend, indemnify and hold ETS and ETS Affi(iates
harmless from and against any and all ciaims, demands, damages, injuries,
expenses (including reasonable atlomeys' fees and court costs) and liability
(including any claims made by Third Parties or custoiners of Merchant)arising
in coc�nection with':(a) Merchant's use of the Services, (b) any acts, omissions
or breach of any provision or warranty confained in [his Agreement by
Ivlercha_nt,any subcontractor or any of their respective Personnel; (c)the failure
of any representation to be, and to continue to be, true; or (d) any claims by
Merchant's Personnel. Merchant acknowledges that [he foregoing applies to,
among other things,all damages,demands,expenses,claims,injuries, suits,and
pro.ceedings asserted or brought aaainst ETS based on a claim that Merchant's
use of the Services constitutes an infringement, violation or misappropriation
of a patent, copyright, trademark, trade sectet or any other intellectual property
right. ETS's entire liability under this Agreement shall be limited to a.refund of
all payments by Merchant of the Services. Merchant waives all claims against
ETS for any loss, claim, demand, penalty, action, defay, cost or eapense
r.,..i, a:.. . ...�.i.. • e �
� � � ` , T f any kind unless Merchant provides
written notice to ETS of the occurrznce tHat gave rise to the alleged liability
within 30 days affer Merchant knew or should have known of the occurrence.
Ivlerchant will indemnify and ho(d ETS harmless from any claim relating to any
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Sales Draft paid for by any bank as may be made by anyone by w�ay ol�detense,
dispute, offset, counterclaim or affirmative action, or Yor any damages of or
losses that such bank or ETS may incur as a result of MerchanYs breach of this
Agreement. Further, Merchant will reimburse ETS for all expenses and costs,
I :.,,.i,.,r.. . ........,_..� r. ._, with regard therew.
3. Pazara�aph 8 shall be modiYied to read:
If a provision of this Agreement is determined to be invalid or unenforceable
by a court of competentjurisdiction, such provision shall besevered, and all
other provisions shall remain in full force provided the original intent of tliis
Agreement is preserved in al] material respects. '�'•�� ^�-���•���•• �"•�" " •
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delay or failure by either party to exercise any right or remedy will operate as
a waiver thereofFailure by ETS to enforce one or more of the provisions of
this Agreement will not constitute a waiver of the right to enforce the samc or
other provision in[he future. Under no circumstances shall ETS have any
liability for any claim arisin� from or relating to this Agreement in excess of
the fees paid by Merchant for the Services under this r\greement. ETS shall
have no liability for consequential, incidental, special or indirect damages
(including loss of profit and business opportunities)regardless of whether it
has been advised of, or is aware that, such dama€es ha��e been, or may be.
incuired, This Agreement may be amended only by a writine executed by
both ETS and Merchant. This Agreement expresses the entire understanding
of the parties with respect to the subject matter hereof and exceptas provided
herein, may be modified only in writing executed by F.TS and Merchant. This
Agreement supersedes all prior agreements and understandings regazding the
Services and any conditions set forth on MerchanPs forn 1 s submitted in
connection with the Services regardless of whether such forms are signed by
ETS. [n the event oY a conflict between the terms of tHis Agreement and any
other document, the tecros of lhis A�reement shall govern, except as set fi�rth
in the opening paragraph , escept[hat actions brought u�i�er this Agreeiilent
shall be brought in accordance with the terms of this pazagraph, whereas
actions brou�;ht under the Merchan[ Agreement shall be brought in accordance
with dte temis of that A�reement. Merchant may not make a claim against
ETS or hold ETS liable for the acts or omissions of`third parties, including but
not limited to other merchan[s, service providers, Card Associations, financial
institutions or others that do not have a written contractual relationship with
ETS or over which ETS has no control.
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CITY OF AUBURN
N cy Backus, ayor
Attest;
L,Lu� �d�'� (1�'�/P�.3e!'7
Damelle Daskam, C�ty Clerk
Approved as w form:
� ��
. eid,City Attorney
ELECTRONIC TRANSACTIONS SYSTEMS
L�1�C�SGI� �'{-E 6�1`� 1C � �D��-^.�ci-1 C.. �.�}�)V�5-F�
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