HomeMy WebLinkAboutContractAGREEMENT FOR VENTEK CREDIT CARD PROCESSING SERVICE
THIS AGREEMENT (“Agreement”), dated for reference purposes only as January 7, 2022, is by and
between the City of Renton (the “City”), a Washington municipal corporation, and Caracal Enterprises LLC
DBA VenTek international (“Vendor”), a Limited Liability Company created under the laws of the State of
Delaware and having offices at 1260 Holm Road – Suite A, Petaluma, CA, 94954. 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 July 1, 2021 (the “Effective Date”).
1. Scope of Work: Vendor agrees to provide online credit card data services, remote
management VenVUE software subscription and VenDIRECT Basic Payment Gateway
servicesasfurther describedin Schedule A, which isattachedand incorporated hereinand
may hereinafter be referred to as the “Work.” Vendor shall provide the Work consistent
with the requirements of the VenTek Online Services Agreement as set forth in Exhibit 1.
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 mutually agreed by the Parties.
3.Time of Performance:Vendor shall commence performance of the Agreement within 10
business days of the City’s annual maintenance payment for services.
4. Compensation:
A. Amount. The amount of the Agreement is made up of two parts, “One-Time Costs”
which apply to Phase 1 of the Work, and “Recurring Costs” which apply to Phase 2 of
the Work.
x One-Time Costs. The amount of the One Time Costs for this Agreement shall not
exceed $1,580 plus any applicable state and local sales taxes. Costs shall be paid
based upon Workactually performed according to the rate(s) or amounts specified
in Schedule A.
x Recurring Costs. The amount of the Recurring Costs shall be $1,580, plus any
applicable state and local sales taxes, for the period starting one year from the
Effective Date. Recurring Costs are to be billed annually and are not to exceed an
increase of 3% year over year unless otherwise agreed by both Parties.
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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. On an annual basis during any year in which Work is performed,
the Vendor shall submit a voucher or invoice in a form specified by the City, including
a description of what Work has been performed, the name of the personnel
performing such Work, and any hourly labor charge rate for such personnel. The
Vendor shall also submit a final bill upon completion of all Work. Payment shall be
made by the City for Workperformed within thirty (30) calendar days after receipt and
approval by the appropriate City representative of the voucher or invoice. If the
Vendor’s performancedoesnot meet the requirements of this Agreement, the Vendor
will correct or modify its performance to comply with the Agreement. The City may
withhold payment for work that does not meet the requirements of this Agreement.
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 Workor 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. Either party may terminate this Agreementat any time, with or without cause by giving
90 (90) calendar days’ notice to the Vendorin 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
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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
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 Workprovided 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 Vendorhas responsive records and for which Vendor
has withheld records or information contained therein, or not provided them to the City
in a timely manner. Vendorshall produce for distribution any and all records responsive to
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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
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
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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
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
Workprovided by a licensed professional or Workthat requiresa professional standard
of care.
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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.
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 Vendorliability, 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.
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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.
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.
Vendoragrees 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 Vendorshall 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.
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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 suchinformation 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 Vendoris not responsible for damages, nor shall the Vendor be deemed to
be in default of the Agreement.
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: Except for Service of Process, 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 email, 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. 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
David Lemenager
1055 South Grady Way
Renton, WA 98057
Phone: (425) 430-6882
Email: dlemenager@rentonwa.gov
And to
Cityclerk@rentonwa.gov
VENDOR
Contract Administrator
VenTek International
1260 Holm Road – Suite A
Petaluma, CA 94954
Phone: 800-748-6267
Email: erikaa@ventek-intl.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,
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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.
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.
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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.
B. General Administration and Management. The City’s project manager is David
Lemenager, dlemenager@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.
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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.
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.
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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:____________________________
Kristi Rowland
Deputy Chief Administrative Officer
Erika Anderson
VP of Sales
_____________________________
Date
_____________________________
Date
Approved as to Legal Form
By: __________________________
Cheryl L. Beyer
Senior Assistant City Attorney
IT-Contract Template 6/17/2021
Non-standard Clb1/7/22 1768
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Exhibit 1 – VENTEK ONLINE SERVICES AGREEMENT (OSA)
This Online Services Agreement (“OSA”), with a Commencement date for services of 7/1/2021 is
between:
Caracal Enterprises LLC, (DBA VenTek International), a Limited Liability Company created
under the laws of the State of Delaware and having offices at 1260 Holm Road – Suite A,
Petaluma, CA, 94954, (herein called “VENTEK”),
and:
City of Renton with its principal offices located at City of Renton, 1055 S. Grady Way, Renton,
WA 98057 (herein called “SUBSCRIBER”).
WHEREAS:
A. SUBSCRIBER has purchased an interconnected online network of VENTEK
Automated Pay Station Units (“APSU”) to collect electronic revenue in the form of credit
and debit payments and wishes to purchase Cloud Computing services from VENTEK
to ensure secure management of this communication/processing/reporting system (the
“System”).
B. All SUBSCRIBER APS units communicate in real-time with a central communication
processor, enterprise database, and transaction processing server system (collectively,
the “IT Platform”) hosted and maintained by VENTEK in its data center facility, the
VenTek Data Center (“VDC”).
C. For a fee prescribed herein, VENTEK will establish and manage a SUBSCRIBER-
specific IT Platform in the VDC to process and store all SUBSCRIBER Unit data (“Data
Hosting Service”).
D. For an additional prescribed fee, VENTEK can provision digital cellular wireless
connections to enable each APSU to communicate with the IT Platform (“Wireless
Service”).
E. Furthermore, for an additional prescribed fee. VENTEK can provide transaction
processing services to enable each SUBSCRIBER APS unit to process electronic
payment cards through the IT Platform (“Transaction Processing Service”).
F. Additionally, if SUBSCRIBER has elected that VENTEK provide Full Service “Turn Key”
Transaction Processing (“Turnkey TPS”), all APSU electronic payments will be
collected in a VenTek-managed checking account. Subsequently, these proceeds will
be funded to the SUBSCRIBER, in the manner, amount and periodicity defined herein.
G. In aggregate, the Data Hosting Service and the Wireless Service form the data delivery
aspect of the Online Services (the “Data Services”) and are provided to the
SUBSCRIBER under the terms of this Agreement.
H. In aggregate, the Data Services and the Transaction Processing Services (“TPS”) form
the complete set of data and electronic payment processing offerings (the “Online
Services” or simply the “Services”).
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I. SUBSCRIBER desires to select the purchase, and elect the delivery modes, of specific
VENTEK Services herein.
J. Furthermore, SUBSCRIBER desires to enter into an agreement with VENTEK
regarding maintenance and operation of the IT platform and general performance of
the Services.
K. SUBSCRIBER desires to use VenTek’s web-based venVUE®Remote Management
software to view the data collected using the Data Services, and VENTEK commits to
ensuring that access to this web portal is secure and available.
L. In faithful execution of the Services, VENTEK shall provide SUBSCRIBER with an
accurate reporting interface and host the IT platform in compliance with Payment Card
Industry (“PCI”) Data Security Standards (“PCI-DSS”) as amended from time to time.
M. VENTEK represents to SUBSCRIBER that it has achieved thirty-party certification of,
and will maintain, Level 1 PCI-DSS Service Provider and APS Payment Application
(“PA-DSS”) compliance throughout the term of this Agreement.
NOW THEREFORE, VENTEK and SUBSCRIBER (the “Parties”) hereby agree as follows:
1.TERM
1.1 Initial Term. This Agreement shall become effective as of the Contract Commencement
Date above and shall remain effective for a period of one (1) year (“Initial Term”), or
until terminated in accordance with Agreement Section 5 entitled “TERMINATION”, hereof.
1.2 Renewal Term(s). At the end of the Initial Term, the Agreement may be renewed with
the mutual written consent of the Parties for additional one (1) year periods (each a
Renewal Term”). In the event that such written consent is not received at the end of the
Initial or Renewal Term, the Agreement will remain in effect on a month-to-month basis
until such time as a written renewal or cancellation request is received from
SUBSCRIBER. An annual price increase shall be applied to the Services for each year
of a Renewal Term upon the same terms and conditions of the Initial Term as specified
in Section 4.2.
2.SERVICE OBLIGATIONS
2.1 PCI-DSS Certification. VENTEK agrees to maintain its PCI-DSS Level 1 Service
Provider certification status for the duration of this Agreement, and to provide
SUBSCRIBER evidence of such certification on an annual basis. As a PCI certified Level
1 service provider, Ventek maintains responsibility for securing any cardholder data in our
possession.
2.2 PCI-DSS Compliance Maintenance. If at any time during the Initial Term or any subsequent
Renewal Term VENTEK fails to maintain PCI-DSS compliant status, VENTEK would be
considered to be in breach of this Agreement. In this event, VENTEK will notify
SUBSCRIBER of such condition and be afforded thirty (30) days to cure the condition. If
the breach is not cured within these timelines, then at the SUBSCRIBER’s option, the
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Agreement shall be deemed in default and terminated in accordance with Section 6. In the
event of such breach, VENTEK shall reimburse SUBSCRIBER for all fees paid for service,
if any, commencing with the initial date of non-compliant status regardless of the date of
notification of such condition.
2.3 IT Platform Breach. If a data compromise and/or identity theft is proven to have occurred
in the performance of the Services, VENTEK will notify the SUBSCRIBER and to the extent
possible, and with the assistance of SUBSCRIBER, notify cardholders who may have been
affected by this event, and be liable for all associated costs incurred by SUBSCRIBER in
responding to or recovering from said breach in accordance with PCI-DSS guidelines.
2.4 IT Platform Upgrades. VENTEK agrees to provide upgrades to existing IT platform
functionality to SUBSCRIBER on an “as desired” or “as-needed” basis at a mutually agreed
price.
3.SERVICE PRODUCT DELIVERABLES
3.1 Hosting Service. VENTEK’s IT platform Hosting Service product shall include at no extra
cost to SUBSCRIBER all maintenance and engineering work required to maintain existing
IT platform functionality for the term of this Agreement.
3.2 Wireless Service. VENTEK’s Wireless Service product shall include at no extra cost to
SUBSCRIBER all Technical Support work required to maintain APS digital cellular
connectivity connections for the term of this Agreement.
3.3 Online Service Deliverable. The service products delivered by VENTEK for the
SUBCRIBER’s System comprise Hosting Service, Wireless Service and Transaction
Processing Service. All Services delivered under this Agreement are defined in Schedule
“A” entitled “Online Service Elections and Fees”.
4.FEES & BILLING
4.1 Data Service Fees. SUBSCRIBER shall be billed for Data Services on a “per APSU” basis
at the rate and frequency prescribed in “Schedule A – Online Service Elections and Fees”.
4.2 Transaction Processing Service Fees. SUBSCRIBER shall be billed for TPS Services in
the form and at the rate and frequency prescribed in “Schedule B – Transaction Processing
Services” (“TPS”).
4.3 Annual Fee Increases. The Online Service Fees shall be automatically increased at a rate
of three percent (3.0%) per annum after the initial year unless an alternate figure has been
previously agreed to.
5. PAYMENT AND TAXES
5.1 Currency of Exchange. All remuneration paid by SUBSCRIBER to VENTEK will be made
in American currency.
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5.2 Payments. Schedules “A” and “B” contain a complete list of all of SUBSCRIBER’s Online
Service products delivered and administered under this Agreement with their respective
fees and billing frequency.
5.3 Invoicing Procedure. VENTEK will invoice SUBSCRIBER at the rate and frequency
prescribed in Section 4.
5.4 Payment Due. Fees shall be due and payable sixty (60) calendar days from the date of
VENTEK’s invoice.
6.TERMINATION See Agreement.
7.INDEPENDENT CONTRACTORS
7.1 Independent Entities. VENTEK is an independent contractor and neither VENTEK nor
SUBSCRIBER will act as the legal agent of the other. Neither party shall issue a news
release, public announcement or advertisement concerning the existence of this
Agreement or its efforts in connection with this Agreement without prior written approval of
the other party.
8.WAIVER See Agreement.
9.FORCE MAJEURE See Agreement.
10.EXCHANGE OF NOTICES See Agreement
11.SEVERABILITY See Agreement
.
12.INSURANCE COVERAGE See Agreement
13.MISCELLANEOUS – See Agreement
PAGE 17 OF 21
SCHEDULE “A” – ONLINE SERVICE DELIVERY
Description Unit
Cost Qty Units
Extended
Cost Months Annual
Amount Total
Initial Year Fees
APS Unit Online Data Services Election(s)
Data Hosting $540 1 per APS Unit $540 Annual $540 $540
Remote Management Software Annual Subscription Election(s)
venVUE®Subscription
(Primary User)
$495 1 per credentialed
User
$495 Annual $545 taxable $545
Transaction Processing Services (TPS) Election
VenDIRECT – Basic
Payment Gateway – Annual
Subscription
$495 1 per paystation $495 Annual $495 $495
Total Price $1580
Table 1: Annual Service Fees for 1 APS Units – Commencement Date: 7/1/2021
A.1 Service Elections & Service Delivery
Table 1 of this schedule, describes all of the Services selected by SUBSCRIBER and their
respective fees, to be delivered by VENTEK pursuant to this Agreement, as amended
from time to time to reflect the purchase/retirement of Service elections and/or
added/removed APS Units connected to the System.
The Terms and Conditions are described under A.2 on the next page.
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A.2 General Service Delivery Terms & Conditions
1.Minimum Term – Each Service has a minimum subscription term of one (1 ) years.
2. If a Service is terminated by SUBSCRIBER before the end of the effective term (the
“Service Maturity Date”), then payment for the remainder of the Services becomes due as
per Section 6, entitled “TERMINATION”.
3.Renewal – After the Service Maturity Date, each service remains in effect until explicitly
cancelled by SUBSCRIBER.
4.Payment – Unless otherwise specified payment for each Service is due in advance on its
Anniversary Date.
5.Carrier Services – SUBSCRIBER may choose from the following types of Online
Connectivity services:
a. GSM/GPRS Digital Cellular
b. CDMA/1xRTT Digital Cellular
c. Satellite
d. Analog Dial-up
e. Ethernet (DSL, Cable Modem, T1/T3 Service, etc.)
6.Fee Increase – The annual fee increase prescribed in Section 4.3 shall apply at the start
of each year after the initial year, unless otherwise specified in A.3 below.
7.Transaction Processing Service (TPS) – details of the elected TPS mode can be found in
SCHEDULE “B” herein.
A.3 SUBSCRIBER-specific Service Delivery Terms & Conditions
1. N/A
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SCHEDULE “B” – TRANSACTION PROCESSING SERVICES (“TPS”)
This SCHEDULE “B” describes the electronic payment (credit and debit cards) Online Services,
a.k.a Transaction Processing Services (“TPS”), provided to the SUBSCRIBER under this
Agreement. This schedule may be amended from time to time to reflect the addition, modification
or deletion of services, the purchase of new APSUs and the corresponding pricing adjustments
to these services, if any.
B.1 Transaction Processing Services (“TPS”) Modes
More specifically, VENTEK provides one of two different forms of TPS to SUBSCRIBER:
1. Basic Payment Gateway (“BPG”) transaction switching (on either a bulk or ‘per
transaction’ basis), or;
2. Full Service “Turn-key” (“FSTK”) payment card processing.
Respectively, these two TPS modes (“Mode”), described more fully herein, provide for VENTEK
delivery of electronic revenues to SUBSCRIBER using either:
x An automated SUBSCRIBER-managed TPS facility in which funds are delivered
directly to a SUBSCRIBER’s financial container, in the case of the BPG product, or
x In the case of the FSTK product, a VENTEK-managed TPS facility in which funds are
collected in a VENTEK financial container, fully reconciled, and subsequently
manually delivered to a specified SUBSCRIBER financial container
B.2 SUBSCRIBER TPS Election
SUBSCRIBER has elected and is funded and billed accordingly the following TPS Mode:
Mode 2 – Basic Payment Gateway TPS [BPG] (Annual Subscription)
B.2.1 Basic Payment Gateway TPS
Mode 1 – Basic Payment Gateway TPS [BPG] (Per Transaction) –ONLY
AVAILABLE FOR 3 OR MORE MACHINES
a. VenTek’s Payment Gateway software forms the basis for this basic ‘transaction
switching’ payment processing TPS Mode
b. In this mode payment authorization requests are “switched” from the APSU
network to the SUBSCRIBER’s Merchant Account (MA) facility
c. All electronic revenue is delivered directly to SUBSCRIBER’s checking account as
an effect of automated payment “Settlements” at the end of the revenue day
d. Merchant Service Provider (MSP) Fees are paid directly by SUBSCRIBER to the
MSP on a monthly basis
e. The fee for BPG Service is:
i. Service Fee Amount = <$0.**> per transaction
ii. It is charged per unit of “transaction presented for payment” on a ‘Pay As
You Go’ (PAYG) manner
f. BPG Service Fees are billed monthly in arrears
PAGE 20 OF 21
Mode 2 – Basic Payment Gateway TPS [BPG] (Annual Subscription)
a. VenTek’s Payment Gateway software forms the basis for this basic ‘transaction
switching’ payment processing TPS Mode
b. In this mode payment authorization requests are “switched” from the APSU
network to the SUBSCRIBER’s Merchant Account (MA) facility
c. All electronic revenue is delivered directly to SUBSCRIBER’s checking account as
an effect of automated payment “Settlements” at the end of the revenue day
d. Merchant Service Provider (MSP) Fees are paid directly by SUBSCRIBER to the
MSP on a monthly basis
e. The fee for this BPG Service is:
i. Service Fee Amount = <$*.**> per annum
ii. It is charged in a lump sum at the start of a processing year
f. BPG Service Fees are billed annually in advance
B.2.2 Full Service “Turn-key” [FSTK] TPS
In FSTK Mode, SUBSCRIBER commissions VenTek to perform all functions related to
the processing of credit/debit card (“Payment Cards”) payments and deliver the
processed electronic revenue on a monthly basis to SUBSCRIBER’s specified depository
account. The fee for this service will be assessed either on a “per transaction” basis or,
as a percentage of the electronic revenue. Additionally, in “Net Receipts” mode variable-
rate Merchant Service Provider (“MSP”) and VENTEK fees are deducted from the
SUBSCRIBER monthly funding.
Mode 3 – Full Service “Turn-key” [FSTK] TPS (Net Receipts)
a. VENTEK processes all electronic Payment Card revenue directly into a VENTEK
checking account reserved for SUBSCRIBER for this purpose
b. The VENTEK Service Fee for this FSTK Service entails:
i.Service Fee Amount = <$*.**> per transaction,
ii.is charged per unit of “transaction presented for payment”, and iii.is
inclusive of the VENTEK Payment Gateway Fee
c. VENTEK-specific TPS Service Fees are automatically deducted from the total
monthly revenue collected from APS units
d. SUBSCRIBER’s Electronic Revenue: net of all fees are paid to Subscriber via
check no later than five (5) business days after receipt of the monthly MSP billing
e. VENTEK’s Merchant Service Provider (MSP) Fees are charged monthly to the
SUBSCRIBER on a “pass through” (no markup) basis
f. Funded amount is calculated as follows:
iii. Funded Revenue = Total Electronic Revenue
– (minus) MSP Billing
– (minus) all VenTek Service Fees
g. A full accounting reconciliation is submitted with the funded electronic revenue
and VENTEK service fees
h. Optionally, VENTEK-specific Online Service Fees can also be billed after in this
process
PAGE 21 OF 21
Mode 4 – Full Service “Turn-key” TPS [FSTK] (Gross Receipts)
a. VENTEK processes all electronic Payment Card revenue directly into a VENTEK
checking account reserved for SUBSCRIBER for this purpose
b. The VENTEK Service Fee for this FSTK Service entails:
i. Service Fee Amount = <$*.**> per transaction,
ii. is charged per unit of “transaction presented for payment”, and
iii. is inclusive of the VENTEK Payment Gateway Fee
c. SUBSCRIBER’s total monthly Electronic Revenue with no fees applied is paid to
SUBSCRIBER <via check or ACH> no later than five (5) business days after
receipt of the monthly MSP billing
d. Funded amount is calculated as follows:
iv. Funded Revenue = Total Electronic Revenue
e. VENTEK TPS Service Fees are billed to SUBSCRIBER on a monthly basis
f. VENTEK’s Merchant Service Provider (MSP) Fees are charged and billed monthly
to the SUBSCRIBER on a “pass through” (no markup) basis
g. A full accounting reconciliation is submitted with the funded electronic revenue,
MSP and VENTEK service fees
h. Optionally, VENTEK-specific Online Service Fees can also be billed after in this
process
Note:
1. Offered pricing may be reviewed in the event of:
a. The end of the first full, and all subsequent, years of revenue service
b. A change in the number of APS units in the system
c. Significant changes in transaction volume