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HomeMy WebLinkAboutContractAGREEMENT FOR ONTO GOLF PAYMENT PROCESSING FOR DISPENSER (SOFTWARE AS A SERVICES AGREEMENT) THIS AGREEMENT (“Agreement”), datedfor reference purposes only asMarch 15, 2024, is by and between the City of Renton (the “City”), a Washington municipal corporation, and Leisure Design Systems LLC (“Vendor”). The City and the Vendor are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last date signed by both parties (the “Effective Date”). 1. Scope of Work: Vendor agrees to enable and provide payment processing from the Golf Course Ball Dispenser asfurther described in Exhibit 1, which isattachedand incorporated herein and may hereinafter be referred to as the “Work.” 2. Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Work consisting of additions, deletions or modifications. Any such changes to the Work shall be ordered by the City in writing, and the Compensation shall be equitably adjusted consistent with the rates set forth in Exhibit A or as otherwise mutually agreed by the Parties. 3.Time of Performance: Vendor shall commence performance of the Agreement within 5 days of the Agreement’s execution. 4. Compensation: A. Amount. Recurring Costs. The amount of the Recurring Costs shall be $.10 + 5% of gross amount per transaction as detailed in Exhibit 1 Schedule 1 for the period starting one year from the Effective Date. Recurring Costs are to be billed monthly. Except as specifically provided herein, the Vendor shall be solely responsible for payment of any taxes imposed as a result of the performance and payment of this Agreement. B. Method of Payment. As detailed in Exhibit 1 Exhibit A Section 5 “Settlement and Payment of Processing Fee”. CAG-24-221 PAGE 2 OF 20 C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by the City of any remedies it may have against the Vendor for failure of the Vendor to perform the Work or for any breach of this Agreement by the Vendor. D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City shall not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 5. Termination: A. The City reserves the right to terminate this Agreement at any time, with or without cause by giving ten (10) calendar days’ notice to the Vendor in writing. In the event of such termination or suspension, all finished or unfinished documents, data, studies, worksheets, models and reports, or other material prepared by the Vendor pursuant to this Agreement shall be submitted to the City, if any are required as part of the Work. B. In the event this Agreement is terminated by the City, the Vendor shall be entitled to payment for all hours worked to the effective date of termination, less all payments previously made. If the Agreement is terminated by the City after partial performance of Work for which the agreed compensation isa fixed fee, the City shall pay the Vendor an equitable share of the fixed fee. This provision shall not prevent the City from seeking any legal remedies it may have for the violation or nonperformance of any of the provisions of this Agreement and such charges due to the City shall be deducted from the final payment due the Vendor. No payment shall be made by the City for any expenses incurred or work done following the effective date of termination unless authorized in advance in writing by the City. C. Return of Information. Upon the written request of City, Consultant shall return any of the City’s Information in a usable format agreed to by the City at no additional cost to the City. 6. Warranties and Right to Use Work Product: Vendor represents and warrants that Vendor will perform all Work identified in this Agreement in a professional and workmanlike manner and in accordance with all reasonable and professional standards and laws. Vendor further represents and warrants that all final work product created for and delivered to the City pursuant to this Agreement shall be the original work of the Vendor and free from any intellectual property encumbrance which would restrict the City from using the work product. Vendor grants to the City a non-exclusive, perpetual right and PAGE 3 OF 20 license to use, reproduce, distribute, adapt, modify, and display all final work product produced pursuant to this Agreement. The City’s or other’s adaptation, modification or use of the final work products other than for the purposes of this Agreement shall be without liability to the Vendor. The provisions of this section shall survive the expiration or termination of this Agreement. 7. Record Maintenance: The Vendor shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement. The Vendor agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement. 8. Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Vendor shall make a due diligent search of all records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Vendor believes said records need to be protected from disclosure, it may, at Vendor’s own expense, seek judicial protection. Vendor shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Vendor has responsive records and for which Vendor has withheld records or information contained therein, or not provided them to the City in a timely manner. Vendor shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Independent Contractor Relationship: A. The Vendor is retained by the City only for the purposes and to the extent set forth in this Agreement. The nature of the relationship between the Vendorand the City during the period of the Work shall be that of an independent contractor, not employee. The Vendor, not the City, shall have the power to control and direct the details, manner or means of Work. Specifically, but not by means of limitation, the Vendor shall have no obligation to work any particular hours or particular schedule, unless otherwise indicated in the Scope of Work or where scheduling of attendance or performance is mutually arranged due to the nature of the Work. Vendor shall retain the right to designate the means of performing the Work covered by this agreement, and the PAGE 4 OF 20 Vendorshall be entitled to employ other workers at such compensation and such other conditions as it may deem proper, provided, however, that any contract so made by the Vendor is to be paid by it alone, and that employing such workers, it is acting individually and not as an agent for the City. B. The City shall not be responsible for withholding or otherwise deducting federal income tax or Social Security or contributing to the State Industrial Insurance Program, or otherwise assuming the duties of an employer with respect to Vendor or any employee of the Vendor. C. If the Vendor is a sole proprietorship or if this Agreement is with an individual, the Vendor agrees to notify the City and complete any required form if the Vendor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Vendor’s failure to do so. 10. Hold Harmless: The Vendor agrees to release, indemnify, defend, and hold harmless the City, elected officials, employees, officers, representatives, and volunteers from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or by any and all persons or entities, arising from, resulting from, or related to the negligent acts, errors or omissions of the Vendor in its performance of this Agreement or a breach of this Agreement by Vendor, except for that portion of the claims caused by the City’s sole negligence. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Vendorand the City, its officers, officials, employees and volunteers, Vendor’s liability shall be only to the extent of Vendor’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Vendor’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City employees from soliciting, accepting, or receiving any gift, gratuity or favor from any PAGE 5 OF 20 person, firm or corporation involved in a contract or transaction. To ensure compliance with the City’s Code of Ethics and state law, the Vendor shall not give a gift of any kind to City employees or officials. Vendor also confirms that Vendor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in selecting the Vendor, negotiating or administering this Agreement, or evaluating the Vendor’s performance of the Work. 12. City of Renton Business License: Unless exempted by the Renton Municipal Code, Vendor shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: https://www.rentonwa.gov/Tax Information regarding State business licensing requirements can be found at: https://dor.wa.gov/doing-business/register-my-business 13. Insurance: Vendor shall secure and maintain: A. Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. In the event that Work delivered pursuant to this Agreement either directly or indirectly involve or require Professional Services, Professional Liability/ Errors and Omissions coverage shall be provided with minimum limits of $1,000,000 per occurrence. "Professional Services", for the purpose of this section, shall mean any Work provided by a licensed professional or Workthat requires a professional standard of care. C. Workers’ Compensation Coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Vendor’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes. PAGE 6 OF 20 E. Cyber Liability Insurance is required, with limits not less than $2,000,000 per occurrence or claim, with $2,000,000 aggregate minimum. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, coverage, including defense, for the following losses or services: claims involving infringement of intellectual property, infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security, coverage for unauthorized access and use, failure of security, breach of confidential information, or privacy perils. The policy shall provide coverage for breach response costs, to include but not limited to crisis management services, credit monitoring, public relations, legal service advice, notification of affected parties, independent information security forensics firm, and costs to re-secure, re-create and restore data or systems as well as regulatory fines and penalties with limits sufficient to respond to these obligations. F. Vendor shall name the City as an Additional Insured on its commercial general liability policy on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Vendor liability, nor shall the maintenance of any insurance required by this Agreementbe construed to limit the liability of Vendorto the coverage provided by such insurance or otherwise limit the City’s recourse to any remedy available at law or in equity. Additional Insured requirements do not apply to Cyber Liability nor Professional Liability insurance, if applicable. G. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before performing the Work. H. Vendor shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. 14. Safeguarding of Personal Information; Intellectual Property: A. Personal Information: Vendor shall not use or disclose Personal Information, as defined in chapter 19.255 RCW, in any manner that would constitute a violation of federal law or applicable provisions of Washington State law. Vendoragrees to comply with all federal and state laws and regulations, as currently enacted or revised, regarding data security and electronic data interchange of Personal Information. Vendor shall ensure its directors, officers, employees, subcontractors or agents use Personal Information solely for the purposes of accomplishing the services set forth in the Agreement. PAGE 7 OF 20 Vendor shall protect Personal Information collected, used, or acquired in connection with the Agreement, against unauthorized use, disclosure, modification or loss. Vendor and its sub-providers agree not to release, divulge, publish, transfer, sell or otherwise make Personal Information known to unauthorized persons without the express written consent of City or as otherwise authorized by law. Vendor agrees to implement physical, electronic, and managerial policies, procedures, and safeguards to prevent unauthorized access, use, or disclosure of Personal Information. Vendorshall make the Personal Information available to amend as directed by Cityand incorporate any amendments into all the copies maintained by the Vendor or its subcontractors. Vendor shall certify its return or destruction upon expiration or termination of the Agreement and the Vendor shall retain no copies. If Vendor and City mutually determine that return or destruction is not feasible, the Vendor shall not use the Personal Information in a manner other than those permitted or authorized by state and federal laws. Vendor shall notify City in writing immediately upon becoming aware of any unauthorized access, use or disclosure of Personal Information. Vendor shall take necessary steps to mitigate the harmful effects of such use or disclosure. Vendor is financially responsible for notification of any unauthorized access, use or disclosure. The details of the notification must be approved by City. Any breach of this clause may result in termination of the Agreement and the demand for return of all Personal Information. B. Intellectual Property: Each Party retains all right, title, and interest under applicable contractual, copyright and related laws to their respective Information, including the right to use such information for all purposes permissible by applicable laws, rules, and regulations. 15. Delays: Vendor is not responsible for delays caused by factors beyond the Vendor’s reasonable control. When such delays beyond the Vendor’s reasonable control occur, the City agrees the Vendor is not responsible for damages, nor shall the Vendor be deemed to be in default of the Agreement. PAGE 8 OF 20 16. Successors and Assigns: Neither the City nor the Vendorshall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent of the other. 17. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission. Email and telephone may be used for purposes of administering the Agreement, but should not be used to give any formal notice required by the Agreement. CITY OF RENTON Kevin Trinh, Senior Systems Analyst 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-6888 Email: KTrinh@rentonwa.gov VENDOR Hormuz Minina, Managing Partner 794 Ralph McGill Blvd. NE Atlanta, GA 30312 Phone: 404-394-0670 Email: hm@ontogolf.com 18. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Vendor agrees as follows: A. Vendor, and Vendor’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Vendorwill take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. PAGE 9 OF 20 C. If the Vendor fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreementin whole or in part. D. The Vendor is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws, worker's compensation, and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton Council Resolution Number 4085. 19. Miscellaneous:The parties hereby acknowledge: A. The City is not responsible to train or provide training for Vendor. B. Vendorwill not be reimbursed for job related expensesexcept to the extent specifically agreed within the attached exhibits. C. Vendor shall furnish all tools and/or materials necessary to perform the Work except to the extent specifically agreed within the attached exhibits. D. In the event special training, licensing, or certification is required for Vendorto provide Work he/she will acquire or maintain such at his/her own expense and, if Vendor employs, sub-contracts, or otherwise assigns the responsibility to perform the Work, said employee/sub-contractor/assignee will acquire and or maintain such training, licensing, or certification. E. This is a non-exclusive agreement and Vendor is free to provide his/her Work to other entities, so long as there is no interruption or interference with the provision of Work called for in this Agreement. F. Vendor is responsible for his/her own insurance, including, but not limited to health insurance. G. Vendoris responsible for his/her own Worker’s Compensation coverage as well as that for any persons employed by the Vendor. 20. Other Provisions: A. Approval Authority. Each individual executing this Agreementon behalf of the City and Vendor represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Vendor. PAGE 10 OF 20 B. General Administration and Management. The City’s project manager is Kevin Trihn, Senior Systems Analyst, ktrinh@rentonwa.gov. In providing Work, Vendor shall coordinate with the City’s contract manager or his/her designee. C. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. D. Conflicts. In the event of any inconsistencies between Vendor proposals and this Agreement, the terms of this Agreementshall prevail. Any exhibits/attachments to this Agreement are incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent a Vendor prepared exhibit conflicts with the terms in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous terms shall not be incorporated herein. E. Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton. Vendor and all of the Vendor’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Vendor hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Vendor is a foreign corporation not registered with the State of Washington. H. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. I. Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. PAGE 11 OF 20 J. Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Work is essential to the Vendor’s performance of this Agreement. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either the City or Vendor from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. N. Counterparts. The Parties may execute this Agreementin any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below. CITY OF RENTON By:_____________________________ VENDOR By:____________________________ Armondo Pavone Mayor Hormuz Minia Managing Partner _____________________________ Date _____________________________ Date 8/9/2024 PAGE 12 OF 20 Attest _____________________________ Jason A. Seth City Clerk Approved as to Legal Form By: __________________________ Shane Moloney City Attorney IT-Contract Template 6/17/2021 Approved by Cheryl Beyer via email 7/17/2024 PAGE 13 OF 20 Exhibit 1. Leisure Design Systems Service Agreement The "Customer": ("The Customer") 1.Parties and Purpose.Leisure Design Systems LLC ("LEISURE DESIGN SYSTEMS") hereby agrees to provide to the Customer the LEISURE DESIGN SYSTEMS Select Pi system (as defined below) and to provide to the Customer, network services (" LEISURE DESIGN SYSTEMS Service") utilizing LEISURE DESIGN SYSTEMS web based Select Pi portal, golfer’s mobile app and processing technology solely in connection with the Customer's automated dispenser equipment that is equipped with a LEISURE DESIGN SYSTEMS Select Pi unit or LEISURE DESIGN SYSTEMS API (such unit, a "LEISURE DESIGN SYSTEMS Unit") enabled to connect to LEISURE DESIGN SYSTEMS's cloud-based portal. This Service Agreement covers the sale of the LEISURE DESIGN SYSTEMS Unit (if applicable) and the provision of the LEISURE DESIGN SYSTEMS Service. This Service Agreement shall not govern credit card clearing services which are optional and may be provided subject to Customer' execution of a separate clearing agreement, a copy of which is attached as Exhibit A hereto, and for an additional fee. If the Customer has purchased the LEISURE DESIGN SYSTEMS Unit from either a reseller or other agent of LEISURE DESIGN SYSTEMS or from LEISURE DESIGN SYSTEMS directly, the terms and conditions of this Agreement will apply and govern regarding this LEISURE DESIGN SYSTEMS Unit. 2.The LEISURE DESIGN SYSTEMS Services. LEISURE DESIGN SYSTEMS hereby grants the Customer, during the term of this Agreement, access to the cloud based Select Pi ACE portal. Select Pi portal provides(a) information and management abilities, including: dispenser status, API access for the POS to print single use QR. and other functionality developed by the POS system integrating with Select Pi, pricing PAGE 14 OF 20 updates, marketing tool and (b) detailed reports regarding sales by dispenser, information regarding total sales with real time reporting, detailed transaction report and summary transactions reports, including totals by payment type (c) Support Services for the system’s software and hardware which include speaking to trained technicians and access to timely replacement parts. 3. Fees and Payments. In consideration for the LEISURE DESIGN SYSTEMS Select Pi system Service, the Customer shall pay Leisure Design Systems the fees set forth in Schedule 1 according to the payment terms set forth therein. LEISURE DESIGN SYSTEMS may offset any such amount from the net amounts due to the Customer for any reason including but not limited to any amounts due to the Customer if LEISURE DESIGN SYSTEMS also handles clearing services for the Customer. 4. Availability of Service. Customer acknowledges that LEISURE DESIGN SYSTEMS relies on third party providers in the delivery of its services, including, but not limited to, processing service providers and network providers. The Customer acknowledges that provision of the LEISURE DESIGN SYSTEMS Services may depend on factors beyond LEISURE DESIGN SYSTEMS's control, including but not limited to factors affecting the operation of Public Systems (i.e. telecommunication systems run by public telecommunication operators or internet service providers which may be accessed by cellular data network, ISDN, IP, analogue line or other transmission types) and Banking Systems (i.e. banking, financial institution or other similar bodies). LEISURE DESIGN SYSTEMS is and shall not be obliged to provide the LEISURE DESIGN SYSTEMS Services where such factors prevent it. Furthermore, the Customer agrees that from time to time, LEISURE DESIGN SYSTEMS, the third party provider for the network, and/or other third parties may perform routine maintenance or emergency maintenance which could cause some LEISURE DESIGN SYSTEMS Services not to function partially or entirely, during the performance of such maintenance. LEISURE DESIGN SYSTEMS shall not be liable for any such failure to function. The Customer agrees that LEISURE DESIGN SYSTEMS shall not be liable for, and to defend, indemnify and hold LEISURE DESIGN SYSTEMS, its affiliates, directors, officers, employees, agents, and assigns harmless for any losses, damages, or business interruptions sustained as a result of factors outside of LEISURE DESIGN SYSTEMS's control and interruptions caused routine or emergency maintenance or by third party providers, including, but not limited to its wireless data network providers and processing service providers. 6. LEISURE DESIGN SYSTEMS Hardware Warranty. LEISURE DESIGN SYSTEMS warrants the Select Pi hardware that for a period of twelve (12) months from delivery (the "Warranty Period”).The foregoing warranty shall not apply to disposal materials PAGE 15 OF 20 and to repair, damages, malfunction or failures, resulting from/ to LEISURE DESIGN SYSTEMS Unit: (i) use of the LEISURE DESIGN SYSTEMS Unit in a manner for which it was not intended; (ii) the defects or malfunctions caused by alteration or modification to the LEISURE DESIGN SYSTEMS Unit without LEISURE DESIGN SYSTEMS's prior written approval; (iii) defects or malfunctions caused by improper service or repair of the LEISURE DESIGN SYSTEMS Unit, by anyone other than LEISURE DESIGN SYSTEMS; (iv) defects or malfunctions which do not adversely affect the ability of the Select Pi System to perform its usual designated function; (v) abuse or negligence by the Customer; or (vi) any other cause beyond LEISURE DESIGN SYSTEMS's control. The warranties contained in this section 6, are exclusive, and are in lieu of all other warranties, express or implied, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, title, or arising by a course of dealing or usage of trade. This section does not limit, and is without prejudice to, the provisions of Section 7 below. 7. Data Protection. LEISURE DESIGN SYSTEMS complies and will comply with Data Security standards with regards to data handling using tokenized and encrypted transactions with the PCI certification for the processing gateway. LEISURE DESIGN SYSTEMS may use the data from the Customer's LEISURE DESIGN SYSTEMS service, which does not identify the Customer or the specific location of the dispenser, solely for internal statistical purposes. 8. Intellectual Property. The Customer acknowledges that LEISURE DESIGN SYSTEMS, its affiliated parties, and/or licensors, and third party suppliers own the intellectual property rights in the services being provided. 9. Limitation on Liability. In no event shall LEISURE DESIGN SYSTEMS, its affiliates and agents be liable for any punitive, incidental, or consequential damages or any damages for loss of profits, business interruption, loss of information, or pecuniary loss, even if LEISURE DESIGN SYSTEMS, its affiliates or agents has been advised of the possibility of such damages. The total liability of LEISURE DESIGN SYSTEMS to the Customer in any calendar year shall not exceed the payments made to LEISURE DESIGN SYSTEMS by the Customer under this Agreement in the calendar year in which such liability arose. 10. Indemnification. The Customer shall defend, indemnify and hold harmless LEISURE DESIGN SYSTEMS its affiliates, officers, directors, agents, suppliers, and employees from and against any and all claims, demands, causes of action, obligations, liabilities, expenses (including reasonable attorney's fees), damages, or suits whatsoever, in connection with, arising out of, or relating to, in whole or in part, any act or omission of the Customer, including, but not limited to, the operation and management of the LEISURE DESIGN SYSTEMS Unit and the LEISURE DESIGN SYSTEMS service. 11. Term and Termination. The term of this Agreement and the LEISURE DESIGN PAGE 16 OF 20 SYSTEMS Services shall be for a period of twelve (12) months from the later of the date of signature of this Agreement by LEISURE DESIGN SYSTEMS or the Customer (the "Initial Term") and shall renew automatically for successive twelve (12) month periods (each a "Renewal Term") unless either party provides notice of not less than thirty (30) days prior to any such Renewal Term. Notwithstanding the above, and without derogating from any other of its rights hereunder or pursuant to law, LEISURE DESIGN SYSTEMS may terminate this Agreement and the LEISURE DESIGN SYSTEMS Services at any time, without liability therefor by providing no less than 30 days written notice, and either party may terminate this Agreement and the LEISURE DESIGN SYSTEMS Services by notice in writing not less than fifteen (15) days after notice of a material breach which has not been remedied during such fifteen (15) day period. Without derogating from the above, in the event of any breach by the Customer of any of its obligations hereunder, or in the event of any requirement of relevant law, or in the event of any force majeure or other event due to which LEISURE DESIGN SYSTEMS, in its sole discretion determines the necessity of doing so, LEISURE DESIGN SYSTEMS may suspend providing the LEISURE DESIGN SYSTEMS Services hereunder for such period as may be necessary in LEISURE DESIGN SYSTEMS's sole opinion. In the event that LEISURE DESIGN SYSTEMS has suspended the provision of the LEISURE DESIGN SYSTEMS Services for more than thirty (30) days, other than due to breach of this Agreement by the Customer or due to any other fault of the Customer, Customer may terminate this Agreement on written notice. 12. No Warranties. Except to the extent as may be otherwise expressly provided herein, all warranties, conditions, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, in respect of the services being provided hereunder, are hereby excluded by LEISURE DESIGN SYSTEMS to the fullest extent permitted by law and LEISURE DESIGN SYSTEMS shall have no other obligation, duty or liability whatsoever in contract, tort, statute or otherwise to the Customer. Without prejudice to the generality of the aforesaid, LEISURE DESIGN SYSTEMS specifically disclaims the implied warranties of merchantability, satisfactory quality and fitness for a particular purpose. 14. Notice. Any notice required or permitted to be given by either party hereto pursuant to this Agreement shall be in writing and addressed to the other party at its registered office or place of business. 15. General. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and shall supersede any and all other communications, understandings, representations and agreements. Except as otherwise expressly stated herein, nothing in this Agreement confers any rights on any third parties. The Customer may not assign, novate, transfer, charge or otherwise deal with the benefit or the burden of this PAGE 17 OF 20 Agreement. LEISURE DESIGN SYSTEMS may assign, novate, transfer, sub-contract, charge or otherwise deal this Agreement and/or any of its rights and/or obligations hereunder at any time without consent of the Customer. LEISURE DESIGN SYSTEMS, INC. Hormuz Minina Managing Partner PAGE 18 OF 20 Leisure Design Systems SCHEDULE 1 - FEE AGREEMENT FORM Contact information Company Name: Customer # (internal use): SHIP TO Contact Name: Address: City State Zip Code Phone Number: Fax Number: Email BILL TO (If different) Contact Name: Address: City State Zip Code Phone Number: Fax Number: Email **Type of Product/Service Being Sold from your Dispenser Fees and Terms Payment Terms**: CCR/CC Support and Portal Access $0 Card present processing fee (if applicable) $0.1 + 5% of the gross amount* Activation Fee: $0 Activation Fee (per device): $0 Billing Plan: Monthly * Payment Term descriptions for customers not reimbursed by Leisure Design Systems: CC- all invoices (for hardware, activation fees and monthly service fees) are automatically paid by credit card, kept on file, on date of invoice (credit card service fee may apply) ** Payment Term descriptions for customers reimbursed weekly by Leisure Design Systems (must also complete the attached Schedule2-Direct Deposit Agreement Form and include a voided check):; Offset/CC- activation and monthly service fee invoices are automatically offset from weekly reimbursements once a month and all hardware invoices are automatically paid by credit card, kept on file, on date of invoice (credit card service fee may apply) PAGE 19 OF 20 Leisure Design Systems EXHIBIT A - Clearing Agreement Company:(the "Customer”) WHEREAS, LEISURE DESIGN SYSTEMS INC ("LEISURE DESIGN SYSTEMS”) has provided to the Customer access to the Select Pi online portal, credit card processing services on the golf ball dispenser and golfers mobile app which connect to LEISURE DESIGN SYSTEMS's cloud based server; and WHEREAS, concurrently with the execution of this agreement, the Customer has executed the Leisure Design Systems Service Agreement ("Service Agreement"); NOW, THEREFORE, the parties have agreed as follows: 1. Clearing Processing Services -LEISURE DESIGN SYSTEMS hereby agrees to provide to the Customer with Select Pi financial services utilizing the LEISURE DESIGN SYSTEMS Select Pi system, solely in connection with the Customer's dispenser equipment that is equipped with Select Pi hardware enabled to connect to LEISURE DESIGN SYSTEMS's Select Pi Server ("Equipment”). Customer acknowledges and agrees that in providing processing and clearing services hereunder LEISURE DESIGN SYSTEMS is acting as agent of Pineapple payment systems (owned by FiServ) and reference to LEISURE DESIGN SYSTEMS performing such services hereunder shall be understood in such light. 2. Credit Card Transaction Processing Services & Associated Fees (" ") -the Customer hereby appoints LEISURE DESIGN SYSTEMS as sole and exclusive agent on behalf of the Customer, in connection with the processing of all card transactions (including but not limited to transactions via credit, debit and prepaid cards) in connection with the Equipment. With respect to each transaction, the Customer shall pay such processing fee (consisting of a percentage of the applicable gross and convenience fee of Select Pi revenue) as specified in Schedule 1 attached hereto in addition to any applicable VAT, sales tax, use tax or similar tax (the "Processing Fee"). LEISURE DESIGN SYSTEMS shall be entitled to change the Processing Fee on 30 days prior written notice to the Customer, provided that upon receipt of such notice the Customer may, within such 30 days period, terminate this Agreement by written notice to LEISURE DESIGN SYSTEMS without liability therefor. 3. Pre-Authorization - The Customer agrees that for each Select Pi transaction, the relevant card will be submitted to the card processor for card validation and transaction authorization. The Customer acknowledges that the card processor may decline any such transaction and that in such case LEISURE DESIGN SYSTEMS shall not continue with the clearing of the transaction. 4. Allocation of Risk - The Customer agrees that with respect to any transaction that clears but is subsequently declined by the card processor for non-sufficient funds or other reasons, the risk of the associated loss of vended product, settlement funds, Processing Fee or any other fee related to such transaction shall be assumed in its entirety by the Customer. LEISURE DESIGN SYSTEMS may deduct any relevant amounts from the amount of net revenues to be tendered to the Customer on a bi-monthly basis, or may charge the Customer separately therefor. 5. Settlement and Payment of Processing Fee - LEISURE DESIGN SYSTEMS shall render a bi-monthly statement to the Customer during the term of this Agreement. Such statement shall detail the net revenues resulting from the processing of transactions from the use of the Equipment and due to the Customer. Every month, LEISURE DESIGN SYSTEMS shall pay the Customer such net revenues, less (a) the amount of any refunds, (b) the Processing Fee, (c) any chargeback from the credit card processor, (d) any amounts incurred for fraudulent transactions, (e) any relevant bank charges, (f) any amounts required to be withheld by LEISURE DESIGN SYSTEMS pursuant to law and (g) any other amounts due to LEISURE DESIGN SYSTEMS, including but not limited to any accounts receivable to LEISURE DESIGN SYSTEMS, activation fees, fees under the Service Agreement, or the processor hereunder or by law. The Customer acknowledges and agrees that the aforesaid statement may be rendered to it by LEISURE DESIGN SYSTEMS. 6. General -the provisions of Sections 3-15 of the Service Agreement shall be deemed incorporated herein by reference. PAGE 20 OF 20 Leisure Design Systems DIRECT DEPOSIT (ACH) AGREEMENT FORM Authorization Agreement I (BELOW NAME AND SIGNATURE) HEREBY AUTHORIZE LEISURE DESIGN SYSTEMS AND ITS DESIGNATED FINANCIAL AGENTS TO INITIATE ELECTRONIC FUNDS TRANSFER OF PAYMENTS AS GOVERNED BY THE (NACHA) RULES. THE AUTHORIZATION OF DIRECT CREDIT (DEPOSITS) OR DEBIT (WITHDRAWALS) IS TO REMAIN IN EFFECT UNTIL LEISURE DESIGN SYSTEMS RECEIVES 10-DAY WRITTEN NOTIFICATION OF TERMINATION FROM AN OFFICIAL AGENT OF YOUR COMPANY. ANY CHANGES TO THE INFORMATION PROVIDED BELOW MUST BE SUBMITTED BY AN OFFICIAL AGENT OF YOUR COMPANY AND BE PROVIDED ON AN UPDATED AND SIGNED SCHEDULE 2 "DIRECT DEPOSIT (ACH) FORM”. Company information Company Name: Customer # (internal use): SPIUGA Finance Contact Name: Address: City State Zip Code Phone Number: Fax Number: Email to send reimbursement statements Bank Information Name of Financial Institution: Name on Account: Routing Number (9 digits): Account Number: Account Type: