CONTRACT 3351 Other CLOSED3351
GOVERNMENT IVR & WEB AGREEMENT
This Agreement is made and entered into this 3 day of 2004, by and between
EZPay Corp., a Michigan Corporation, (hereinafter referred to as the Contractor) and the City of El
Segundo, CA, (hereinafter referred to as the Agency). "The Contractor" includes, without limitation,
EZPay, its agents, and its subcontractors. The parties intend by this Agreement to provide an
interactive voice response and/or Web Payment application for credit card transactions in which fines,
fees and taxes are paid by the user (violator) by authorizing charges to their credit cards, pursuant to
the laws of the state of California. In the furtherance of this purpose, the parties do hereby agree to
the following terms and conditions:
SCOPE OF AGREEMENT
A. Pursuant to this Agreement, the obligations of the Contractor are:
1) To supply and install its "WEB BASED PAYMENT SYSTEM and/or
INTERACTIVE VOICE RESPONSE SYSTEM (System)," all equipment and
software as described in the Contractor System Proposal. Components of the system
must be installed in the designated office of the Agency, for the purpose of accepting
various credit cards payments as agreed to by both parties, as a means of collecting
fines and fees owed to the Agency;
2) To provide all training. All application training will be scheduled, coordinated and
conducted by the Contractor and scheduling will be coordinated with the Agency.
The initial application training will take place at the Agency's location at the time of
installation, which will also be completed by the Contractor. All training and
installation costs to be incurred by the Contractor.
3) The Contractor's system is responsible for the storage and retrieval of all credit card
payment and refund transactions in real time as the transactions occur. The
Contractor's system will balance and reconcile each day's electronically captured
transactions on a daily basis. The Contractor's system will, when necessary as a
result of such reconciliation, process all appropriate adjustments.
4) The Contractor's systems will electronically transmit to processing centers all
payment and refund transactions in real time as the transactions occur. The
Contractor's system will balance each day's electronic captured data on a daily basis.
The Contractor when necessary as a result of lower volume of such reconciliation and
transactions, transfer funds and reports to the Agency on a monthly basis.
B. Pursuant to this Agreement, the obligations of the Agency are:
1) Enter into a Government Services Agreement for accepting credit cards as payments.
2) To provide a site location for installation of the Contractor's system. The Agency's
site will include a clean, controlled room, sufficient electrical capacity, provisions for
connecting incoming phone lines, two outgoing phone lines for the Contractor to
access for credit card authorization, one phone line for the Contractor use and one
dedicated link to the Agency computer. All cost of installation and monthly
maintenance of site and lines will be paid by the Agency.
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3) To be responsible for all promotion and advertising of the credit card payment
program. The Agency agrees to print the system's phone number and web address on
all citations and subsequent notices.
4) In the event of a reversed or rejected credit card transaction, termed "charge back,"
the Agency will only be charged back the amount of the Agency's original
transaction. The Contractor is responsible for that portion of the charge back, that
includes the Contractor's original transaction fee, and any service fees associated
with the charge back, excluding the Agency's bank fees, if any.
2. TERM OF AGREEMENT
The Period of Performance under this Agreement is Three (3) years and commences upon the
approval as attested by the signing by the Agency and the Contractor. This agreement may be
terminated by either party with thirty (30) days written notice . Upon termination, both parties
are released from all contractual obligations to the other party excluding Non - Disclosure
(paragraph# 10) and Indemnification (paragraph# 11) provisions.
3. CONTRACTOR'S RELATIONSHIP
The Contractor's relationship to the Agency in the performance of this Agreement is that of
an independent contractor. Personnel performing services under this Agreement will at all
tunes be under the Contractor's exclusive direction and control and be employees of the
Contractor and not employees of the Agency. Contractor must pay all wages and salaries of
its employees and is responsible for all reports and obligations respecting them relating to
social security, income tax withholding, unemployment compensation, worker's
compensation and similar matters. Neither Contractor nor any agent or employee of
Contractor will obtain any right to retirement benefits or other benefits, which accrue, to
employees of the Agency, and Contractor on behalf of its agent or employees, hereby
expressly waives any claim it might have to such rights.
4. RECORDS AND AUDIT
The Contractor must keep complete and accurate records for the services performed pursuant
to this Agreement and any records required by law or government regulation, and make all
records available for auditing to the Agency at the Agency's request. The Contractor must
prepare and forward such records as the Agency may reasonably request. The Contractor
must assure the confidentiality of any records that are required by law to be so maintained.
5. RISK OF LOSS
The Agency's responsible for risks of loss or damage to the Contractor's equipment on
Agency's premises, except for loss or damage caused by Contractor's negligent or willful
actions or inactions.
6. software LICENSE
A. GENERAL
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The Contractor hereby grants to the Agency a nontransferable, non - exclusive license to
use all software provided with the System, as well as any additions and/or supplements
thereto, solely in the conduct of the business of the Agency on the specific computer or
computers provided the Contractor. The foregoing shall not be construed to preclude the
Agency from using the software or a backup copy of the software on another machine
temporarily in the event of disaster or other extenuating circumstances. The Agency shall
notify the Contractor in writing of such use and the Agency shall be responsible for
removing all software and proprietary information from such temporary equipment
within two weeks of the conclusion of its use. If the Agency wishes to use the licensed
software in other limited situations, such as setting up a test system, the Agency must
first obtain express written consent from the Contractor, which consent shall not be
unreasonably withheld.
Licensed software will be provided by the Contractor to the Agency pursuant to the terms
of this Agreement in machine - readable code. The Agency acknowledges that by virtue
of this license, the Agency acquires only the right to use the original and permitted
duplicate copies of the licensed software and does not acquire any rights of ownership in
the licensed software, which rights shall remain exclusively with the Contractor. The
term of license shall commence upon delivery of the first module of licensed software
and shall remain in force through the term of this Agreement as long as the Agency is not
determined by a court of competent jurisdiction to be in breach of the Agreement.
All customized programming on the system, performed by the Contractor's staff, to
customize menus and to interface to the Agency's computer processor, remains the
property of the Contractor. The Agency is granted a non - exclusive, royalty free license to
use one copy of this program(s).
B. OWNERSHIP
The Agency retains for itself, and the Contractor acknowledges that the Agency so retains
ownership and rights to all data and associated transaction records entered into the
database or created by the system; and to all data and information files created by the
Contractor in the performance of this Agreement and owned by the Agency.
The Contractor retains for itself and the Agency acknowledges that the Contractor so
retains ownership and rights to ownership to all Interactive Voice Response and/or Web
Based Systems and all legally attached components to the Interactive Voice Response
System used in performance of this Agreement.
C. WARRANTIES. The Contractor represents and warrants that:
The software is the result of the Contractor's sole efforts unless otherwise
stipulated as a collaboration;
Except as otherwise disclosed in writing to the Agency, the software is unique and
original and does not infringe upon any copyright or patent;
All software installed by the Contractor will be warranted to be free from defects
in material and workmanship for a minimum period of one (1) year from the date
the Agency accepts the software. The Contractor warrants that the software will
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perform in accordance with and strictly comply with specifications, requirements,
standards and representations set forth in this Agreement. Should the software not
perform as required, the Contractor will promptly correct any such deviations.
The correction of any such deviation will be at no cost to the Agency and the
work performed will be performed in a timely and professional manner by
qualified personnel.
D. INTELLECTUAL PROPERTY INFRINGEMENT. Notwithstanding any
provision to the contrary, the Contractor will, at its own expense, indemnify and
defend the Agency against any claim that the Contractor's services or work product
furnished under this Agreement infringes a patent or copyright in the United States or
Puerto Rico. In such event, the Contractor will pay all costs damages and attorney's
fees that a court finally awards as a result of such claim. To qualify for such defense
and payment, the Agency must (a) give the Contractor prompt written notice of any
such claim; and (b) allow the Contractor to control, and fully cooperate with the
Contractor in the defense and all related settlement negotiations. The Agency agrees
that if the use of the Contractor's services or work product becomes, or the Contractor
believes is likely to become, the subject of such an intellectual property claim, the
Agency will permit the Contractor, at its option and expense, either to secure the right
for the Agency to continue using the Contractor's services and work product or to
replace it with comparable services and work product.
7. NON - DISCLOSURE
Each party expressly covenants and agrees that it will not, except as otherwise required by
law including, without limitation, the California Public Records Act, at any time during or
after the termination of this agreement with each other, whatever may be the reason for such
termination, reveal or make known to any person, firm, or corporation, any confidential
information disclosed to it by the other, relating to the business plans, product research and
development plans, customer relationships, supplier relationships, project and sales
opportunities, proposal or bid strategies, corporate strategies, or any information which has
been marked confidential by the disclosing party, including, but not limited to, all
information relating to the Contractor, the Contractor's systems and clients.
Notwithstanding the fact that confidential information may be disclosed, it is understood and
agreed that all such information shall remain the property of the disclosing party and no use
shall be made of such information except as is required by the terms of the business
relationship between the parties in accordance with the instructions, and with the consent of,
the disclosing party.
Neither party shall copy, photograph, photocopy or in any other manner reproduce or cause
reproduction to be made of any plans, specifications, formulae, instructions or any other
document or infonmation furnished to it without the express written permission of the other
party. Neither party will disclose any verbal confidential information, which may be
communicated to it. Immediately upon termination of the business relationship between the
parties, whatever may be the reason for such termination, or the request of either party, each
party shall return to the other all plans, equipment, specifications, formulae, instructions and
any other documents or information delivered or communicated to it by the other party.
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Notwithstanding anything to the contrary before set forth or implied, the obligations of non-
use and maintenance of confidentiality shall not apply to any information:
A. Which, at the time of disclosure, is part of the public domain,
B. Which, at the time of disclosure, is already known to the recipient thereof or its
employees;
C. Which, subsequent to the time of disclosure, becomes part of the public domain by reason
of authorized publications; or
D. Is otherwise required by applicable law.
8. INDEMNIFICATION
The Contractor agrees to Indemnify and hold the Agency, its governing body and member,
officials, officers, employees and agent ( "The Agency's Parries ") harmless from and against
any and all liability, demands, claims, actions, loses, interest, cost of defense, and expenses
(including reasonable attorney's fees) which arise out of its acts or omissions in connection
with this Agreement, except to the extent of the Agency's own negligence or willful
misconduct.
These indemnification provisions will survive the termination of this Agreement.
9. THIRD PARTY BENEFICIARIES
Notwithstanding mutual recognition that use of the System under this Agreement may
provide some aid or assistance to members of the Agency, it is not the intention of either the
Agency or the Contractor that such individuals occupy the position of intended third party
beneficiaries of the obligations assumed by either party to this Agreement.
10. EQUAL OPPORTUNITY EMPLOYER
Contractor is an Equal Opportunity Employer and does not discriminate in the hiring, firing,
or other employment practices engaged in or by it.
11. MAILING OF NOTICES
NOTICES. Any notice, request, order or other communication permitted or required by this
Agreement shall be in writing and shall be sent by certified mail, return receipt requested, to
the parry for whom it is intended at its address set forth at the beginning of this Agreement.
Either party may designate a different address for communications to it by notice to the other.
Postage prepaid, and properly addressed as follows:
IF TO the Contractor:
Nick George
EZPay Corp.
8313 Holly Rd.
Grand Blanc MI 48439
12. GENERAL
IF TO the Agency:
IMS Manager
Lee Robinson
The City of El Segundo
350 Main St.
El Segundo, CA 90245
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A. This Agreement is the final, entire and complete agreement between the Agency and the
Contractor, and supersedes any prior and contemporaneous negotiations, understandings,
representations and agreements. The terms and provisions of this Agreement may not be
waived or amended except by a written agreement between the parties.
B. Should any provision of this Agreement or any amendment be held by any court to be
unenforceable, such defect shall not affect the remainder of this Agreement, which shall
remain in full force and effect.
C. Any failure by either party at any time to require strict compliance with this Agreement
shall not waive or diminish any rights of either party to demand strict compliance. No
waiver of any default by either party shall waive or affect any other default by either
pay.
D. This Agreement shall be governed by and interpreted under the laws of the State of
California. If any provision in this agreement shall be deemed unenforceable or
overbroad, it shall be interpreted to the greatest extent allowed by law. Exclusive venue
for any action involving this Agreement is in Superior Court for Los Angeles County or,
if applicable, the Federal District Court located serving Los Angeles County.
IN WITNESS WHEREOF, the parties have caused this Agreement, which shall inure to the benefit of
and be binding upon the successors of the respective parries to be signed and entered as of the date
first mentioned above.
The EZPay Corp.
ice President
(DATE) J
The City of El Segundo
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Amount of Payment
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$100.00
Addendum A
Per Transaction Fee
52.93
Thereafter 5% a transaction
Web Hosting of $ 100 per month to be paid by The City of El Segundo
The Transaction fee maybe paid by the violator as a convenience fee or the City.
PRWE INCREASES
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with approval of Agency.
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