HomeMy WebLinkAbout20040523.tiff RESOLUTION
RE: APPROVE INTERNET MERCHANT AGREEMENT AND AUTHORIZE CHAIR TO SIGN -
WELLS FARGO MERCHANT SERVICES, LLC
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS,the Board has been presented with an Internet Merchant Agreement between
the County of Weld,State of Colorado,by and through the Board of County Commissioners of Weld
County,on behalf of the Department of Social Services,and Wells Fargo Merchant Services,LLC,
commencing upon full execution of said agreement, and automatically renewing for consecutive
one-year terms, with further terms and conditions being as stated in said agreement, and
WHEREAS,after review,the Board deems it advisable to approve said agreement,a copy
of which is attached hereto and incorporated herein by reference.
NOW,THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Internet Merchant Agreement between the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the
Department of Social Services, and Wells Fargo Merchant Services, LLC, be, and hereby is,
approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
The above and foregoing Resolution was,on motion duly made and seconded,adopted by
the following vote on the 18th day of February, A.D., 2004.
BOARD OF COUNTY COMMISSIONERS
W LD COUNTY, COLORADO
ATTEST:144, E La
Robert D. Masden, Chair
Weld County Clerk to t +:'
a ° �17.✓
William H. rke, Pro-Tem
BY: w
Deputy Clerk to the Bo � 1 � / gZ{i✓
M. J. eile
APPROVE AS T9
EXCUSED
David Long
nt/Attorn y �
Glenn Vaad
Date of signature: -/4
2004-0523
TR0023
SS o3 -03 -0L(
WELLS FARGO INTERNET MERCHANT AGREEMENT
(Government Entities-Colorado)
This Wells Fargo Internet Merchant Agreement(Government Entities) dated_Febuary !st 2004 is being entered
into by_Weld County ("Client", "You"or"Your") in order for Client to obtain card processing and e-
commerce services as described at http://www.wellsfargosecure.com/("Services") and as provided by Wells Fargo
Bank, N.A. and Wells Fargo Merchant Services, LLC (collectively, 'Wells Fargo"or"Us"or'We"or"Our"), and Our
suppliers("Suppliers"). By execution of this agreement, Client is agreeing to and accepting the terms and conditions
of this agreement(together with your application, the Pricing Schedule and the terms and conditions stated on Web
pages incorporated by reference herein, the"Agreement"). This Agreement also may be referred to in Your
Application as Your Merchant Card Services Agreement. This Agreement sets out the terms and conditions under
which You may utilize the Services.
NOW THEREFORE,You and We agree as follows:
1. Your Information and Related Matters
1.1 Accuracy of Information. You represent and warrant that all information You have provided to Wells Fargo is true
and correct in all respects, and that You will update Wells Fargo with any changes to information You have previously
supplied. You further represent and warrant that You have the legal authority to enter into this Agreement. You
acknowledge that acceptance into the merchant program is subject to final evaluation and approval by Wells Fargo.
Wells Fargo reserves the right to terminate this Agreement. Wells Fargo and/or its Suppliers reserve their right to
refuse to provide You with any Services, with or without notice, if You have supplied any information which is
misleading, untrue, inaccurate or incomplete.
1.2 Access to Client Information. You acknowledge that Wells Fargo is entering into this Agreement in reliance upon
available financial information about You and Your operations and requires true, complete and accurate information
as a condition to providing the Services. You agree to reasonably cooperate, subject only to applicable law, to the
extent Your assistance is needed in order for Wells Fargo and/or its agent(s)to investigate the financial history of
Client, including investigative credit reports if applicable, in order to evaluate acceptability in to the Wells Fargo
Merchant Services Merchant Program and if accepted, to conduct further investigations from time to time thereafter
and to report credit information to others.
2. General Description of the Services and Reserved Rights of Wells Fargo
2.1 Beginning to Use the Services. Information provided by You during the application process will be automatically
routed to Wells Fargo which will evaluate Your eligibility to receive the Services. if, on the basis of this evaluation, it is
determined that You are eligible to receive the Services, You will be notified of Your acceptance and provided with
information on activating Your account. Upon Your acceptance for Services the Agreement will be deemed to be fully
executed and will become effective starting on the date of Your acceptance("Effective Date") except with respect to
Your representations and obligations under Section 1 on which We may rely immediately. (For purposes of this
Agreement, all persons or entities utilizing or receiving the benefit of Our Services through You, including for example
and without limitation persons paying taxes or charges for municipal services by credit card, are deemed to be Your
"customers".)
YOU AGREE AND ACKNOWLEDGE THAT WELLS FARGO AND/OR ITS SUPPLIERS RESERVE THE RIGHT IN
THEIR SOLE DISCRETION TO REJECT YOUR ENROLLMENT FOR THE SERVICES WITHOUT ANY FURTHER
OBLIGATION TO YOU.
2.2 Internet Services. Pursuant to this Agreement You appoint Wells Fargo, and Wells Fargo agrees to perform, in
accordance with this Agreement, as Your exclusive provider of credit card payment processing services with respect
to Card Not Present transactions(as defined by card association rules).
2.3 Options for Card Acceptance. Under this Agreement, You may elect to submit transactions under(1) credit
cards, (2)consumer debit cards or prepaid cards, or(3)both, at the pricing set forth at the Pricing Schedule.
2.4 Technology Service Provider Services and Gateway Services.
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(a) Technology Service Providers. Subject to Section 2.2, You may contract separately with third party
providers of technology services("TSPs")in order to receive services such as telephone interactive voice response
services not included in Our Services, and to fulfill certain of your obligations under this Agreement. You must inform
us in writing of any TSP which will be performing services related to Our Services prior to utilizing the Services, and
notify us of any substitution of another TSP. You acknowledge and agree that performance of your obligations under
this Agreement is your sole responsibility notwithstanding any such delegation or any error or omission committed by
such TSP, and that We will deem any such TSP to be acting as your agent. We do not accept any responsibility or
liability for the acts or omissions of your TSPs, and We are not responsible to such TSPs for any reason under this
Agreement.
(b) Gateway Services. In order to use the Services, You will need a means to securely gather sales
receipts from Your Website or operations and encrypt and transmit such data to the Supplier which provides
processing for the applicable Service. Depending on the Service You subscribe to, this connection to Us may be
provided directly by You or by a TSP"gateway provider"which You designate, for a fee which We may collect on
behalf of such gateway provider. In the event that You do agree to use any gateway provider for the above
connection service or any other gateway provider service related to Our Services, You: (a)give Us permission to
register You with such provider, if needed; (b) agree that You are solely responsible for Your relationship with such
gateway provider and any data transmitted or made available to such provider, including complying with any
requirements of such gateway provider with respect to its services, hardware or software and obtaining any required
end-user consents for transmission of date through such gateway provider; and(c) agree to Our debiting of Your
account for such gateway provider fees.
2.5 Changes or Discontinuation of Services. You further understand and agree that Wells Fargo and/or its Suppliers
may, in their sole discretion, change, add to, remove, modify and/or discontinue any and all Services with thirty(30)
days notice to You, and Wells Fargo and/or its Suppliers will have no liability to You or any third parties in connection
with any of such actions described in this sentence.
3. Client Data Collection and Use
You hereby consent, as a condition of Your enrollment in the Services, to the collection, use, processing and transfer
of Client data as described in this paragraph and the Privacy Statement at http://www.wellsfargosecure.com/. You
understand that Wells Fargo and/or its Suppliers may collect and hold non-public information about You, including but
not limited to Your name, address,telephone number, e-mail address, tax identification number, and credit history for
the purpose of considering eligibility for Services and/or processing transactions("Data'). You also understand and
acknowledge that Wells Fargo and/or its Suppliers may obtain various reports regarding You from third parties, run a
credit check or obtain other business or credit information about You or Your operations. You further understand and
acknowledge that Wells Fargo, its Suppliers and/or their agents/contractors may transfer Data among themselves as
necessary for the purpose of the provision and management of Services(including maintaining and operating internal
fraud detection databases and systems, generally), and that Wells Fargo and/or its Suppliers may each further
transfer Data to third parties assisting Us in evaluating Your eligibility for, provision of, administration and
management of Services, as well as under circumstances described in the Privacy Statement. You also understand
that Wells Fargo and/or its Suppliers may disclose Data as necessary to comply with the requirements of the law or
the lawful order of a court or other governmental body.
4. Password and Implementation Materials
Promptly on or following the Effective Date,You will be allowed to access and utilize the Services and You will be
provided with some information and materials to utilize the Services. Such information and materials and all
intellectual property rights associated therewith will remain the property of Wells Fargo and/or its Suppliers. You
agree to restrict use and access to Your password and log-on ID to Your employees and agents as may be
reasonably necessary, and will ensure that each such employee or agent complies with all applicable provisions of
this Agreement. You will not give, transfer, assign, sell, resell or otherwise dispose of the information and materials
provided to You to utilize the Services.You are solely responsible for maintaining adequate security and control of
any and all IDs, passwords, or any other codes that are issued to You by Wells Fargo or its Suppliers.
5. Establishment of Accounts and Payment of Fees
In consideration of Your access to and utilization of the Services, You agree to make arrangements for financial
transactions and payments as described in this Section 5.
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5.1 Pricing Schedule. You agree to the pricing set forth on the pricing schedule available at
http://www.wellsfargosecure.com, or as otherwise made available or presented to You("Pricing Schedule"). You may
call customer service with any questions regarding Your pricing.
5.2 Changes to Pricing Schedule; Additional Fees. You acknowledge that Wells Fargo may revise the Pricing
Schedule upon at least thirty(30) days advance notice to reflect pricing changes mandated by Visa, MasterCard or
other card associations("Associations"). Clients for whom pricing is based on a pass-through of Association
transaction fees acknowledge that any change to such fees by the Associations shall be effective immediately. Wells
Fargo may increase Your Chargeback fee without notice in the event Your chargeback percentage exceeds the
estimated industry chargeback percentage or if You are identified by one of the Association's Chargeback compliance
programs. You are responsible for any fines, penalties, fees or assessments imposed by the Associations based on
your improper use of the Services or noncompliance with rules of the Associations ("Association Rules"). In the event
Your Visa and MasterCard transaction(s)fail to qualify for the interchange level contemplated in the rates set forth in
the Application, You will be billed for the difference between the established rate and the higher rate and may be
billed an additional fee for said nonqualified transactions, plus all fees, penalties, charges and assessments, if any, of
Wells Fargo, Visa, and MasterCard. The fees set forth in the Pricing Schedule may be adjusted to reflect increases
or decreases by MasterCard and/or Visa in Interchange, assessment or other MasterCard and/or Visa fees, or to
pass through increases charged by third parties for on-line communications and similar items, if applicable.
Additionally, all such adjustments shall be Your responsibility to pay and shall become effective upon the date any
such charge is implemented by MasterCard and/or Visa or other third party. Additionally, each foreign
Visa/MasterCard transaction submitted will be subject to an international transaction handling fee.
5.3 Discount Rates and Fees.Wells Fargo may charge You a Visa/MasterCard discount rate on Your Pricing
Schedule. Discount fees will be based on the gross deposited bank card sales drafts based on an estimated monthly
volume and average credit card sale amount, as indicated on the Application. You agree that the Wells Fargo may
adjust the discount rate to the rate applicable to Your true monthly Visa/MasterCard volume and true average credit
card sale amount,to be effective on the first day of the next succeeding month following failure to meet the
requirements. Discount Fees may be paid by a TSP on Your behalf, but You are liable for any shortfall or failure to
pay such fees.
5.4 Settlement Account . As part of the enrollment process, You will be required to designate a checking account,
also known as a Demand Deposit Account("DDA") into which Wells Fargo and/or its Suppliers will deposit the funds
received by Wells Fargo and/or its Suppliers on Your behalf from Your customers purchasing the goods and/or
services from You or making payments to You on a net settlement basis(the"Settlement Account"). The Settlement
Account will be deemed to belong to Client and will not be debited by us except in instances where We determine
fraud has occurred on Your account, and except that we may interrupt funding to such account pursuant to Section
5.6 below.
5.5 General Account. With Our agreement, You may also designate a DDA separate from the Settlement Account
as the primary account for payment of all fees and amounts owing to Wells Fargo under this Agreement(collectively,
"Service Fees")which will be funded by You at a level We will determine from time to time based upon Your
transaction and ticket volume and chargeback activities. If such an account(hereafter, "General Account")and
funding structure is established,We will first attempt to collect Service Fees from the General Account; however, if
such funds are not available for any reason You agree that we shall be entitled to collect against any other DDA,
including the Settlement Account in the event of fraud. You agree that Wells Fargo may initiate ACH credits and
debits to such DDAs and to any successor accounts that You may designate to Wells Fargo in writing in connection
with such transactions, and in addition, that Wells Fargo may collect from such DDAs the charges and fees due Welts
Fargo under the Agreement, including penalties and chargebacks. You further authorize Wells Fargo to obtain from
the institution at which the DDA is held(this may be a Wells Fargo Bank or another institution) information related to
the DDA, including collected balance reports, and to obtain any information deemed by Wells Fargo to be reasonably
necessary to process debit and/or credit entries to the DDA.
5.6 Insufficient Funds.Wells Fargo and/or its Suppliers will initiate an electronic ACH debit of Your applicable DDA for
any outstanding Services Fees and charges against Your DDA following the attempted net settlement or collection of
Service Fees. In the event there are insufficient funds in Your DDA following the ACH debit attempt,Wells Fargo
and/or its Suppliers will issue a written invoice to You. The invoice must be paid by You within fifteen (15)days
following the date of such invoice as instructed in the invoice. A late payment fee of$15 will be charged by Wells
Fargo and/or its Suppliers, and outstanding balances will accrue interest at the rate of 1.5% per month (18% per
annum)or, if less,the maximum amount allowed by law.You will be liable to Wells Fargo and/or its Suppliers for any
collection costs or attorney fees that are incurred in the event action is taken by Wells Fargo and/or its Suppliers to
collect any past due balance of Services Fees.
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5.7 Withholding of Receivables as Reserve Fund; Recovery of Losses. Upon any Event of Default as defined in
Section 15.2, or in any event that We suffer a loss in connection with processing Your transactions or identify
transactions or patterns of transactions which in Our reasonable opinion may be fraudulent or constitute a credit risk
to Wells Fargo,We may withhold amounts otherwise payable to You in order to recover such loss or potential losses
and while we investigate such transactions or otherwise control Our financial exposure(such withheld amounts may
be referred to as a "Reserve Fund"). We may also take such actions as are necessary to collect amounts owed to
Us or needed to provide an adequate Reserve Fund wherever funds may be maintained. Wells Fargo is hereby
authorized (and any related notice and demand are hereby expressly waived) by You, to set off, recoup and to
appropriate and to apply any and all such amounts owing,funds held, account balances and other collateral
(collectively, "Collateral")against and on account of Your obligations under this Agreement however arising
("Obligations"), whether such Obligations are liquidated, unliquidated, fixed, contingent matured or unmatured. In the
case of any Collateral consisting of a deposit account with a Wells Fargo Bank or any other financial institution, You
hereby agree that Wells Fargo shall have control thereof and the depository will (and is hereby authorized to)comply
with instructions originated by Wells Fargo directing disposition of funds in the deposit account without further
consent by You. You agree to duly execute and deliver to Wells Fargo such additional instruments, documents and
agreements as may be reasonably requested to perfect and confirm the rights of set off, recoupment, subordination
and control over deposit accounts and other Collateral set forth in this Agreement. In cases of fraud or similar cause,
no prior notice shall be required for Our actions under this Section 5.6, but We shall notify You in writing within three
business days after effectuating a suspension of credits or other payments or taking a Reserve Fund under this
Section, which shall state Our reason for the belief that such fraud or similar cause exists.
5.8 Reserve Account. You expressly authorize Us to establish a reserve account("Reserve Account") pursuant to
the terms and conditions set forth in this Section as security for us in addition to our rights in the General Account and
Settlement Account. The initial amount of such Reserve Account shall be set by Us, in Our sole discretion, based
upon Your processing history and the potential risk of loss to Us. The Reserve Account shall be fully funded upon
three(3) days' notice to You, or in instances of fraud or default, reserve account funding may be immediate. Such
reserve account may be funded by all or any combination of the following: (i)one or more debits to Your Settlement
Account or any other accounts held by Wells Fargo or any of is affiliates; (ii)one or more deductions or offsets to any
payments otherwise due to You; (iii)Your delivery to Us of a letter of credit; or(iv) if We so agree, Your pledge to Us
of a freely transferable and negotiable certificate of deposit. Any certificate of deposit shall be issued by a financial
institution acceptable to Us and shall be in a form satisfactory to Us. In the event of termination of this Agreement by
any party, an immediate Reserve Account may be established without notice in the manner provided above. Any
Reserve Account will be held by Us for the greater of ten (10)months after termination of this Agreement or for such
longer period of time as is consistent with Our liability for credit card transactions or ACH electronic system
transactions in accordance with Visa U.S.A., Inc. and MasterCard International Incorporated and any other credit card
association(collectively"Association")rules and any National Automated Clearing House Association ("NACHA"
rules). Your funds held in a Reserve Account may, at Our discretion, be held in a deposit account in Your name or in
Our name, or in a commingled account for the reserve funds of Our clients, without involvement by an independent
escrow agent. If Your funds in the Reserve Account are not sufficient to cover the chargebacks, adjustments,fees
and other charges due from You, or if the funds in the Reserve Account have been released, You agree to promptly
pay Us such sums upon request.
5.9 Security Interest. To secure all of Your present and future Obligations to Us and Our affiliates Me and Our
affiliates may be referred to collectively as"Secured Parties"and individually as a"Secured Party"for purposes of
this Section 5.8) under this Agreement and under any other agreement for provision of related equipment or related
services(collectively, "Obligations"), You hereby grant to Secured Parties liens and security interests in all of Your
rights to and interests in the following, presently existing or hereafter acquired, and in any interest earned thereon
and proceeds thereof(collectively, "Collateral"): (i)the Reserve Account, (H)the General Account, (iii) any Reserve
Fund maintained by Us under Section 5.7 above, (iv) any deposit account now or hereafter maintained by You with
Wells Fargo Bank or any other Secured Party, (v)any of Your funds now or hereafter in the possession of Wells
Fargo Bank or any other Secured Party, and(vi) all amounts now or hereafter owing to You under this Agreement, or
under any other agreement for the provision of related equipment or services. In addition to any rights granted
Secured Parties under applicable law, each Secured Party is hereby authorized (and any related notice and demand
are hereby expressly waived),to set off, recoup and to appropriate and to apply any and all such amounts owing,
funds held, account balances and other Collateral against and on account of Your Obligations, whether such
Obligations are liquidated, unliquidated, fixed, contingent matured or unmatured. In the case of any Collateral
consisting of a deposit account with Bank, any other Secured Party or any other financial institution, You hereby
agree that Secured Parties shall have control thereof and the depository will (and is hereby authorized to)comply
with instructions originated by any Secured Party directing disposition of funds in the deposit account without further
consent by You.You agree to duly execute and deliver to Secured Parties such additional instruments, documents
and agreements as may be reasonably requested to perfect and confirm the liens, security interests in deposit
accounts and other Collateral set forth in this Agreement. You agree that Secured Parties may file such financing
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statements in Your name describing any or all of the Collateral and take such other action as they may require in
order to perfect their liens and security interests therein.
5.10 Audit. You hereby grant to Wells Fargo, its Suppliers and/or auditors the right of access to Your books and
records(including any records maintained by a TSP)and agree to provide assistance at all times during the term of
this Agreement for the purposes of allowing Wells Fargo, its Suppliers and/or auditors to conduct an audit and/or
verify Your compliance with this Agreement.Wells Fargo, its Suppliers and/or its auditors will not conduct an audit
more than three times in any twelve month period and will give You at least five(5) days prior written notice of such
audit. The cost of the audit will be borne by Wells Fargo.
5.11 No Liability for Delays or Errors by Unrelated Third Parties. We will not be liable for any delays in receipt of
funds or errors in debit and credit entries caused by third parties which are unrelated to Us including but not limited to
any TSP, Association or NACHA or Your financial institution.
5.12 Non-Visa or MasterCard Issuers. For designated transactions from cards issued by American Express,
Novus/Discover, Japanese Credit Bureau (JCB), Diners Club/Carte Blanche, and other entities, these issuers may be
responsible for settlement, chargebacks, and customer service and may charge a separate fee for these services.
6. Your Obligations, Representations and Warranties
6.1 Your Web Site and Access to Services. You are responsible for all costs and management related to Your
access to and utilization of the Services, including, but not limited to the operation and management of all software,
hardware and equipment. You agree that You are responsible for obtaining any required authorizations or consents
from your customers in connection with Transactions, including without limitation to authorization for recurring billings.
You also are solely responsible for Your Website including but not limited to Web operations, information security,
product support, quality and availability of products and/or services made available at Your site, fulfillment of orders
and returns. You will ensure that all customers of Your Website placing an order for product(s)and/or service(s)are
timely advised of the status of such purchase(s) including the timely confirmation of all orders via electronic mail.
6.2 Your Web Site and Online Activities. You will provide Wells Fargo the Web address and a complete and accurate
written description of Your online activity utilizing the Services which describes the products and/or services offered
by You and a description of the advertising of Your products and services prior to the offering new products and/or
services to customers, including any changes to Your Web address and written description of Your online activity as
they occur. You acknowledge that You will be solely responsible for(i)Your product(s)and/or service(s); (ii)the
Website content; (iii)all representations made in connection with product(s)and/or service(s); (iv)the content and
nature of all promotions and advertising; (v)the quality of products and/or services offered by You or on Your
Website; (vi)the conformity of Your products or services with any requirements of Association Rules or applicable
law; and(vii) ensuring that Your products and services do not infringe or violate the copyright, trademark or other
proprietary rights of any party.
6.3 No Internet Abuse. You will not engage in any form of Internet abuse, including but not limited to: (i) sending any
kind of unsolicited or unwelcome email to a substantial number of network users, anywhere on the Internet; (ii)
posting a single article or substantially similar articles to an excessive number of newsgroups or mailing lists; (iii)
repeated or deliberate posting of articles that are off-topic according to the charter of the newsgroup or mail list where
such articles are posted; and (iv)posting commercial advertising in a conference or newsgroup, unless it is
specifically permitted to be posted within that group. You understand that Wells Fargo and its Suppliers may
investigate any reported occurrence of potential Internet abuse and take appropriate action, which depending on the
circumstances and severity of any such occurrence may include: (a) issuing a warning to You and taking necessary
action to minimize any damage; (b)suspending Your right to access and use the Services; and/or(c)immediately
terminating this Agreement.
6.4 Compliance with Laws, Rules, and Guidelines. You will comply with all applicable laws and regulations in
connection with Your access and utilization of the Services, including expressly any and all Association Rules, any
and all NACHA rules, or Wells Fargo procedures or guidelines as set forth in any Operating Guide, Program Guide,
information available at wellsfargosecure.com, or other document provided to You or made available to You
regarding proper use of the Service(any such document, a"Guideline"). In the event of any conflict between the
terms of this Agreement and any such Guideline, the terms of this Agreement shall govern. It is an express condition
to Our delivery of Services to You that You comply with all applicable laws, regulations, Association Rules and
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Guidelines. Failure to so comply may be deemed an Event or Default and grounds for termination of Your
Agreement.
6.5 Compliance with Data Security Requirements. You will: (i) comply with all then-current legal obligations and
guidelines, including without limitation those issued by Associations and the Federal Trade Commission, associated
with the collection, security and dissemination of data on Your Website, and expressly including the Visa Cardholder
Information Security Program (CISP). (For details of this program log onto www.visabrc.com) and the MasterCard
Site Data Protection Program (SDP); and(ii)conspicuously post on Your Website a privacy policy that meets all
applicable legal and Association requirements and is consistent with good business practices with respect to the
collection and use of customers' personally identifiable information. If You fail to comply with the requirements of this
Section 6.5,Wells Fargo and/or its Suppliers may suspend the provision of Services hereunder immediately upon
written notice to You. That notice will explain the basis for such suspension, including measures reasonably
calculated to rectify the failure. The suspension will remain in effect and until such time as Wells Fargo and/or its
Suppliers are satisfied that You have cured Your failure. You shall not store Cardholder Verification Value 2 (CVV2)
information of any cardholder and will be liable for any fines for violation of such Association Rule.
6.6 Use of Cardholder Information. Unless You obtain consents from Us and each applicable Association, card
issuing bank and cardholder, You must not use, disclose, sell or disseminate any cardholder information obtained in
connection with a Card transaction (including the names, addresses and Card account numbers of Cardholders)
except for purposes of authorizing, completing and settling Card transactions and resolving any chargebacks,
retrieval requests or similar issues involving Card transactions, other than pursuant to a court or governmental
agency request, subpoena, order, or pursuant to applicable law. You shall use proper controls for and limit access to,
and render unreadable prior to discarding, all records containing Cardholder account numbers and Card imprints.
You may not retain or store magnetic stripe data after a transaction has been authorized. If You store any
electronically captured signature of a Cardholder, You may not reproduce such signature except upon Our specific
request. Association rules prohibit the sale or disclosure of databases containing cardholder account numbers,
personal information, or other Visa transaction information to third parties as an asset of a failed business. In such
cases, transaction information is required to be returned to the acquiring bank(Wells Fargo Bank, N.A.) or acceptable
proof of destruction of this data provided.
6.7 Modification in Connection with Association Requirements. Visa and MasterCard Association Rules give Visa
and MasterCard certain rights to require termination or modification of this Agreement with respect to transactions
involving Visa and MasterCard credit or debit cards("Cards")and the Visa and MasterCard Card systems and to
investigate You. You also acknowledge that issuers of other Cards,for which Wells Fargo performs services on Your
behalf, may have similar rights under their applicable Association Rules with respect to this Agreement's applicability
to transactions involving such other Cards.
6.8 No Illegal Use of Services. You will not access and/or utilize the Services for illegal purposes and will not
interfere or disrupt networks connected with the Services.
6.9 No Processing of Fraudulent Transactions. You will not process a transaction that You know, or should have
known,to be fraudulent.
6.10 No Use of Services for Others. You will not use the Services to accept payments on behalf of other entities or
companies or individuals desiring to accept credit card payments using Your account with Wells Fargo, including
other government entities wishing to accept credit card payments. Use of Your account for other public agencies
included in the same governmental entity may be allowed with Wells Fargo's prior consent.
6.11 No Age Verification. You will not use a Credit Card to verify, or assume, the age of any cardholder.
6.12 Delivery of Goods. To the extent applicable, based on Your use of the Services, You will be solely responsible
for the delivery of all goods and/or services ordered by Your customers(including for example, allowing customers to
pay You by credit card for taxes or municipal services, if applicable)and Your customers'satisfaction therewith.
6.13 Exchange or Return Policy. To the extent applicable, You will establish and maintain a fair and uniform policy
for the exchange and return of products or services sold. Such policy will include, but not be limited to, the following
provisions:
6.13.1 You will provide credit in the same form payment was originally received, upon customer request for
return, and will not refund with cash.
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6.13.2 All disputes involving the goods or services purchased from You will be settled between You and
Your customer. You will indemnify and hold Wells Fargo and/or its Suppliers harmless from any claim or
liability relating to any such dispute.
6.13.3 You will provide Wells Fargo and/or its Suppliers, upon demand, with any information, evidence,
assignments or other assistance Wells Fargo and/or its Suppliers may need to help resolve any customer
billing disputes regarding the nature, quality or performance of the goods or services, or in connection with
any return or rejections of such goods and services.
6.14 Taxes. To the extent applicable, You will be solely responsible for properly calculating and remitting to the
proper taxing authority all sales, use value-added and other similar taxes due with respect to goods and services
purchased from You.
6.15 Updates to Your Information. You must update Wells Fargo by contacting Customer Service of any changes to
information provided in Your Application.
6.16 Record-keeping Obligations. You will keep full and accurate records of Your utilization of the Services and all
transactions with Your customers involving the utilization of the Services. You will retain such records for at least
twelve months following the termination of this Agreement.
6.17 Financial Statements. You acknowledge that as described in Section 1.2 above,Wells Fargo will obtain certain
financial information in connection with your enrollment and continuance in its merchant services program. You will
also provide such other financial statements and other information concerning Your operations and Your compliance
with the terms and provisions of this Agreement as We may reasonably request within five(5) business days.We
may also access and use information which You have provided to Bank for any other reason. You will provide Us with
written notice of any judgment, writ,warrant of attachment, execution or levy against any substantial part(25% or
more in value) of Your total assets not later than three(3) days after You become aware of same. Upon request, You
shall provide to Us or Our representatives reasonable access to Your facilities and records(to the extent information
is not otherwise publicly available)for the purpose of performing any inspection and/or copying of Your books and/or
records deemed appropriate. All information provided or made available to Wells Fargo pursuant to this Section shall
be treated by Wells Fargo as confidential information and used only for the purposes described in this Section.
7. Chargebacks
7.1 Responsibility for Chargebacks. You will be solely responsible for all chargeback amounts relating to credit card
transactions where, including, but not limited to: (i)goods are retumed and a proper credit for cardholder is not
received by Wells Fargo and/or its Suppliers for processing; (ii)the transaction record is, or is alleged to have been,
executed, accepted, endorsed, completed or assigned improperly without authority or not in accordance with the
authorization requirements or provisions of this Agreement; (Hi)the transaction record is incorrectly completed,
incomplete or illegible; (iv)the cardholder disputes the sale, quality or delivery(or availability for pre-arranged pick-
up)of goods or the performance or quality of service covered by the transaction record or agreement accepted by
such cardholder; (v)multiple transaction records were executed to avoid authorization scrutiny; (vi)the extension of
credit for goods sold or rented or services performed was in violation of law or the rules or regulations of any
governmental agency,whether federal, state, local or otherwise; (vii) acceptable verification of the applicable
transaction cannot be produced by You within ten days of Wells Fargo's and/or its Suppliers'request; (viii)the
cardholder asserts any claim or defense which the cardholder has as a consumer of goods or services; (ix)the
cardholder disputes the validity of an internet,telephone or mail order card transaction; or(x)the card transaction is
otherwise subject to chargeback by the card issuing bank or cardholder in accordance with the applicable law. You
may not attempt to obtain multiple authorizations for a single transaction. If a sale is declined, do not take alternative
measures with the same Card to obtain an approval of the sale from other authorization sources. Instead, request
another form of payment. If You accept and process a transaction that was declined, or attempt multi-transactions
and/or multi-authorizations, You are subject to a chargeback and cancellation of Your Agreement,
7.2 Responsibility for Losses from Failure to Produce Transaction Records. You shall reimburse Wells Fargo and/or
its Suppliers for any chargebacks, return items, or other losses resulting from Your failure to produce a card
transaction record requested by Wells Fargo and/or its Suppliers within the applicable time limits.
6. Prohibited Activities
You agree that You will not at any time conduct Your operations in any manner that directly or indirectly offers, sells,
leases, licenses, displays, delivers, advertises, recommends,or promotes any product(s), service(s), data,
information, image(s),text and/or other Website content,which is: (i) unlawful or violates any applicable local, state,
Internet Merchant Agrmt-Weld county Gout Entities(CO) 01-29-04.doc 7
national or international law, ordinance or regulation having the force of law; (ii) pornography or sexually oriented,
profane, obscene, vulgar, offensive, lewd; (iii)defamatory, libelous, slanderous, abusive,threatening or harassing
towards others; (iv) a multi-level marketing program, chain letter or pyramid scheme; (v)an unfair, unlawful or
deceptive business practice; (vi) racially or otherwise offensive, hateful, bigoted or intolerant; (vii) in violation of any
privacy or data protection law or right; (viii) infringe or violate any patent, copyright, trademark,trade secret, right of
publicity or privacy or other proprietary right under the laws of any jurisdiction; (ix)transmit or deliver in any material
that contains viruses, worms, Trojan horses,time bombs and any other harmful or damaging software or other
technology or the means for developing any of the above; (x)advocate, promote and/or provide assistance in
carrying out violence or any other unlawful activity against any persons or any governments, businesses or other
entities; (xi)the subject of any government investigation or proceedings; (xii)any form(s) of gambling; or(xiii) not
consistent with prevailing Internet"Netiquette" standards, as determined by Wells Fargo and/or its Suppliers in their
sole discretion.
9. Your Representations and Warranties
You represent and warrant that, to the extent applicable based on Your use of the Services: (i)all products and/or
services offered, sold or otherwise provided on Your Website are made, offered, sold or otherwise provided in
compliance with all applicable laws and regulations; (ii)all products and/or services offered, sold or otherwise
provided on Your Website do not and will not infringe the copyrights of third parties; (iii) Your Website is in
compliance with applicable laws and regulations; (iv) information provided as part of the enrollment process is
accurate, complete and current; and (v)You have the power and authority to enter into and perform Your obligations
under this Agreement.
10. Customer Service
Wells Fargo will provide You with written instructions regarding access to the customer service department
("Customer Service")for technical and operational questions. In addition, Customer Service contact information will
be provided within the Services.
11. Proprietary Rights
11.1 Rights in Intellectual Property. Wells Fargo and/or its Suppliers will own and retain all of their respective rights,
titles and interests in and to all intellectual property embodied in or associated with the design and delivery of the
Services, including, but not limited to, content, such as software, graphics, start-up information and materials,
designs, methods, architecture, materials, publications, business plans and other tangible intellectual property-based
assets of any kind whether in machine readable, printed or other form and including, without limitation, all revisions,
enhancements, technical know-how, patents, copyrights, trademarks, moral rights and trade secrets. You expressly
acknowledge and agree that the Wells Fargo name and logos, including without limitation the Wells Fargo stage
coach and the"red box"logo are the exclusive property of Wells Fargo Bank or its affiliates and may not be used or
included in any publication, including customer list or press releases, without the express prior written permission of
an authorized officer of Wells Fargo Bank.
11.2 Confidential Information. To protect certain valuable and confidential information ("Information"), which Wells
Fargo or Client may disclose to the other party in connection with performance and use of the Services, except as
permitted by written consent of the party to which Information belongs(the"Disclosing Party"), the party receiving
such Information("Receiving Party") agrees not to disclose the Information to any third party or to use such
Information for any purpose other than in connection with providing and utilizing the Services. Receiving Party
agrees to limit access to such Information to those of Receiving Party's employees who require access in connection
with using the Services in accordance with this Agreement. At a minimum, Receiving Party will follow the same
procedures to ensure its compliance with these requirements as Receiving Party follows to protect Receiving Party's
own confidential and proprietary information of a similar nature. Information means all information in any form, such
as product developments, software, specifications, protocols, processes, formulas, methods,techniques, concepts,
plans, ideas, business, marketing and financial information, program documentation, and the like, which has been or
may be disclosed to the other party in the course of their dealings, but does not include information and data which
Receiving Party can show: (a)was publicly available prior to disclosure; (b)was validly in Receiving Party's
possession prior to receipt thereof from Disclosing Party; (c)was rightfully received by Receiving Party from a third
party having no fiduciary relationship to Receiving Party or Disclosing Party and having no obligation of confidentiality
with respect to such information and data; or d) Receiving Party developed independently and without any reference
to information and data received from Disclosing Party. The foregoing agreements and obligations of the parties are
subject to applicable law.
Internet Merchant Agrmt-Weld county Govt Entities(CO) 01-29-04Aoc 8
12. Infringement
12.1 Infringement Claims. If the Services or any part thereof becomes, or in Wells Fargo's and/or its Suppliers'
reasonable opinion may become, the subject of any claim, suit, or proceeding arising from or alleging infringement of,
or in the event of any adjudication that the Services or part thereof infringes on, any patent, copyright or any other
intellectual property rights of any third party,Wells Fargo and/or its Suppliers, at their option and own expense, may
take one or more of the following actions:
i. secure for You the right to continue using the Services or part thereof;
ii. replace or modify the Services or part thereof to make them non-infringing; or
iii.terminate this Agreement, and all rights granted hereunder to You with respect to the Services.
12.2 Exclusive Remedy for Infringement. THE ABOVE REMEDIES ARE THE SOLE AND EXCLUSIVE LIABILITY
OF COMPANY AND/OR ITS SUPPLIERS AND ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO
YOU AGAINST COMPANY AND/OR ITS SUPPLIERS IN THE EVENT OF SUCH ACTION OR THREATENED
INFRINGEMENT.
13. Indemnity
To the extent You may do so under applicable law,You agree to indemnify and hold harmless Wells Fargo and/or its
Suppliers, their directors, officers, employees, agents, subsidiaries, members, parents and affiliates, against any and
all liability, loss, claims, demands, damages or costs of any kind, including reasonable attorneys'fees and costs of
litigation, resulting from Your gross negligence or willful misconduct or that of Your directors, officers or employees, or
Your breach of any representation, warranty or obligation under this Agreement.
14. Disclaimer of Warranties and Limitation of Liabilities
THIS AGREEMENT IS A SERVICE AGREEMENT.THE SERVICES AND OTHER INDIVIDUAL COMPONENTS
ARE PROVIDED"AS IS"WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WE DISCLAIM ALL
OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,MADE TO YOU OR ANY OTHER
PERSON, INCLUDING WITHOUT LIMITATION,ANY WARRANTIES REGARDING NON-INFRINGEMENT,
QUALITY,SUITABILITY,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE OF
ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA,
BUSINESS INTERRUPTION,COST OF PROCUREMENT OF SUBSTITUTE SERVICES,OR OTHER SPECIAL,
INCIDENTAL, INDIRECT,OR CONSEQUENTIAL DAMAGES, HOWSOEVER CAUSED,AND ON ANY THEORY
OF LIABILITY,WHETHER FOR BREACH OF CONTRACT,TORT(INCLUDING NEGLIGENCE AND STRICT
LIABILITY),OR OTHERWISE.THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.THE PARTIES ACKNOWLEDGE THAT THE
CONSIDERATION BARGAINED FOR IN THIS AGREEMENT WAS BASED UPON THE FOREGOING LIMITATION
OF LIABILITY.SUBJECT TO THE FOREGOING,WELLS FARGO'S AND/OR EACH OF ITS SUPPLIER'S JOINT
AND SEVERAL LIABILITY FOR DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THIS
AGREEMENT SHALL IN NO EVENT EXCEED(A)THE AMOUNT OF SERVICES FEES PAID BY YOU DURING
THE THEN MOST RECENT TWELVE-MONTH PERIOD OR(B)$50,000,WHICHEVER IS LESS.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,IN NO EVENT SHALL WELLS
FARGO BE LIABLE OR RESPONSIBLE FOR ANY DELAYS OR ERRORS IN OUR PERFORMANCE OF THE
SERVICES. IF AND TO THE EXTENT SUCH DEFAULT OR DELAY IS CAUSED, DIRECTLY OR INDIRECTLY,
BY(I) FIRE, FLOOD, ELEMENTS OF NATURE OR OTHER ACTS OF GOD; (II)ANY OUTBREAK OR
ESCALATION OF HOSTILITIES,WAR, RIOTS OR CIVIL DISORDERS IN ANY COUNTRY; (III)ANY ACT OR
OMISSION BY YOU OR ANY GOVERNMENT AUTHORITY; (IV)ANY LABOR DISPUTES(WHETHER OR NOT
EMPLOYEES' DEMANDS ARE REASONABLE OR WITHIN THE PARTY'S POWER TO SATISFY);OR(V)THE
NONPERFORMANCE BY A THIRD PARTY(INCLUDING A GATEWAY PROVIDER) FOR ANY SIMILAR CAUSE
Internet Merchant Agrmt-Weld county Govt Entities(CO) 01-29-04.doc 9
BEYOND WELLS FARGO'S REASONABLE CONTROL,INCLUDING WITHOUT LIMITATION, FAILURES OR
FLUCTUATIONS IN TELECOMMUNICATIONS OR OTHER EQUIPMENT.IN ANY SUCH EVENT,WELLS FARGO
SHALL BE EXCUSED FROM ANY FURTHER PERFORMANCE AND OBSERVANCE OF THE OBLIGATIONS SO
AFFECTED ONLY FOR AS LONG AS SUCH CIRCUMSTANCES PREVAIL AND WELLS FARGO CONTINUES
TO USE COMMERCIALLY REASONABLE EFFORTS TO RECOMMENCE PERFORMANCE OR OBSERVANCE
AS SOON AS PRACTICABLE.
15. Term
15.1 Term of Agreement. This Agreement will be effective as of the Effective Date and will remain in effect until the
first anniversary of the Effective Date unless earlier terminated in accordance with the terms of this Section 15. This
Agreement will automatically renew for consecutive one(1)year terms unless either party provides notice to the
contrary sixty(60)days prior to expiration of the then-current term of the Agreement.
15.2 Events of Default. In addition to any other remedies set out in this Agreement, including our rights to take a
Reserve Fund under Section 5.6,Wells Fargo may terminate this Agreement and Wells Fargo and/or its Suppliers
may discontinue provision of the Services immediately under the following circumstances(each an"Event of Default")
to the extent any such circumstances are applicable to You or Your operations based on Your use of the Services: (i)
You violate any applicable law or regulation or Association rule or Wells Fargo guideline with respect to the Services;
(ii)You fail to pay Service Fees when due; (iii)You assign or attempt to assign the Agreement or any of Your duties
under this Agreement to another party; (iv)You make misrepresentations to actual or prospective customers
regarding the Services; (v)Wells Fargo receives complaints regarding Your messages, representations, promotions,
advertising, products or services or if claims are made arising from them; (vi)You materially modify the
product/service line that is offered by You without prior written notice to Wells Fargo or your operations or information
about Your or Your operations changes from the description or information provided in your application process
(including a change from anticipated transaction volumes); (vii) You have irregular Card sales, excessive
chargebacks or any other circumstances which, in Our sole discretion, may increase Our exposure for Your
chargebacks or otherwise present a financial or security risk to Us; (viii)You file a petition or have a petition filed by
another party under the Bankruptcy Code or any other laws relating to bankruptcy, insolvency or similar arrangement
for the adjustment of debts; consent to or fail to contest in a timely and appropriate manner any petition filed against it
in an involuntary case under such laws; apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of a
substantial part of its property; or make a general assignment for the benefit of creditors; or take any corporate action
for the purpose of authorizing any of the foregoing; (ix) a material adverse change occurs in Your business, financial
condition, operations procedures, prospects, products or services; (x) Any of Your representations or warranties in
this Agreement are breached in any material respect or are incorrect in any material respect when made or deemed
to be made; (xi)You default in any material respect in the performance or observance of any term, covenant,
condition or agreement contained in this Agreement, including, without limitation,the establishment or maintenance
of funds in a Reserve Account; (xii)You default in any material respect in the performance or observance of any term,
covenant or condition contained in any agreement with any of Our affiliates; or(xiii)Your independent certified
accountants shall refuse to deliver an unqualified opinion with respect to Your annual financial statements and Your
consolidated subsidiaries; (xiv)You are found to be on the Terminated Merchant File maintained by the Association;
or(xv) Your chargeback losses increase by more than twenty percent(20%)from previous levels or exceed
applicable Association thresholds; then, upon the occurrence of any such Event of Default we may consider this
Agreement to be terminated immediately, without notice, and all amounts payable hereunder shall be immediately
due and payable in full without demand or other notice of any kind, all of which are expressly waived by You;
provided, that at Our discretion such termination may be delayed or conditioned upon satisfactory correction of the
Event of Default.
15.3 Termination for Convenience. Either party may terminate this Agreement without cause with thirty (30)days prior
written notice to another party specifying the exact date and time of such termination. In order to terminate this
Agreement, You must provide Wells Fargo notice, as provided in Section 17(Notices).
15.4 Effect of Termination. Upon the termination or expiration of this Agreement:
i. You will immediately account for and pay all Services Fees due and owing pursuant to this Agreement
without demand or other notice of any kind, all of which are expressly waived by You;
ii. You will destroy or return to Wells Fargo all materials and information provided by Wells Fargo or its
Internet Merchant Agrmt-Weld county Govt Entities(CO) 01-29-04.doc 10
Suppliers containing a reference to the Services;
iii.Wells Fargo and/or its Suppliers will cease providing Services and may, in their sole discretion, delete any
content of Your Website or any other data or information You have furnished to Wells Fargo;
iv. Sections 2.4(Technology Service Provider Services and Gateway Services)(with respect to liability for
TSPs and gateway providers), 3(Client Data Collection and Use), 5.7(Withholding of Receivables as
Reserve Fund; Recovery of Losses), 5.8 Reserve Account, 5.9(Security Interest), 5.10(Audit)(for one
year), 6.14(Taxes), 6.16(Record-keeping Obligations)(for one year), 7(Chargebacks), 11 (Proprietary
Rights), 12(Infringements), 13(Indemnity), 14(Disclaimer of Warranties and Limitation of Liabilities), 15.5
(Effect of Termination), 15.6(Combined Terminated Merchant Reporting), 15.7(Continuation of Liability for
Chargebacksj, 17(Notices), 18(Severability), 19(Governing Law and Dispute Resolution), and 20(Entire
Agreement, Amendments and Waivers)will survive the termination of this Agreement.
15.6 Combined Terminated Merchants Reporting. If this Agreement is terminated for cause, You acknowledge that
We may be required to report Your name and the names and other information regarding You to the Combined
Terminated Merchant File maintained by Visa and MasterCard. You expressly agree and consent to such reporting if
You are terminated as a result of the occurrence of an Event of Default or for any reason specified as cause by Visa
or MasterCard. Furthermore, You agree to waive and hold Us harmless from and against any and all claims which
You may have as a result of such reporting.
15.7 Continuation of Liability for Chargebacks. After termination of this Agreement for any reason whatsoever, You
shall continue to bear total responsibility for all chargebacks,fees, credits and adjustments resulting from
Transactions processed pursuant to this Agreement and all other amounts then due or which thereafter may become
due under this Agreement for up to twelve(12) months following termination of the Agreement.
16. Assignment
You will not have the right or the power to assign any of Your rights or delegate the performance of any of Your
obligations under this Agreement without the prior written consent of Wells Fargo, including in the case of a merger.
Wells Fargo will have the right to assign this Agreement to its subsidiaries, affiliates and/or Suppliers upon notice to
You. Any attempted assignment in violation of this Section shall be void and of no legal effect.
17. Notices
17.1 Notification to You. You may be notified by Wells Fargo, including notice of changes in Association Rules or
new requirements applicable to You by any means reasonably available to Us, including email to Your last known
email address, a separate written notice delivered by facsimile or U.S. mail or other courier, or by a "statement
stuffer"included with Your regular account statement, including any online presentment of Your statement. Any such
notice will be binding upon delivery by Wells Fargo unless otherwise stated in such notice.
17.2 Notification to Wells Fargo. Wells Fargo will provide You with written instructions regarding access to the
customer service department("Customer Service")for technical and operational questions. In addition, Customer
Service contact information generally will be provided within the Services. You may(i)write to Wells Fargo Merchant
Services, L.L.C.: 265 Broad Hollow Road Melville, NY 11747; (ii)write to Wells Fargo Bank, N.A.: 1200 Montego Way
Walnut Creek, CA 94598, Attention: Online Merchant Services; or(iii)call Customer Service at(800)451-5817.
18. Severability
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision hereof will be prohibited by or determined to be invalid by a court of
competent jurisdiction, such provision will be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement.
19. Governing Law and Dispute Resolution
19.1 Governing Law. We have substantial facilities in the State of California and many of the services provided under
this Agreement are provided from these facilities. Our Agreement shall be governed by and construed in accordance
with the laws of the State of Colorado(without regard to its choice of law provisions). The exclusive venue for any
actions or claims arising under this Agreement shall be any appropriate state and federal court located in Colorado,
and you hereby consent to the jurisdiction of such courts.
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19.2 Disputes. Any Dispute between the parties arising out of, or relating to,the validity, construction, interpretation or
performance of this Agreement that cannot be amicably resolved will be submitted to binding arbitration in
accordance with the terms of this Section 19(except as set forth in subsection 19.5 below). A"Dispute"shall mean
any action, dispute, claim or controversy of any kind, whether in contract or tort, statutory or common law, legal or
equitable, now existing or hereafter arising under or in connection with, or in any way pertaining to this Agreement.
Any party may by summary proceedings, bring an action in court to compel arbitration of a Dispute. Any party who
fails or refuses to submit to arbitration following a lawful demand by any other party shall bear all costs and expenses
incurred by such other party in compelling arbitration of any Dispute.
19.3 Governing Rules. Arbitration proceedings shall be administered by the American Arbitration Association ("AM")
or such other administrator as the parties shall mutually agree upon. Arbitration shall be conducted in accordance
with the AAA Commercial Arbitration Rules. If there is any inconsistency between the terms hereof and any such
rules, the terms and procedures set forth herein shall control. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act(Title 9 of the United States Code). The arbitration shall be conducted at
a location in the state designated for venue of disputes under Section 19.1 selected by the MA or other
administrator. All statutes of limitation applicable to any Dispute shall apply to any arbitration proceeding. All
discovery activities shall be expressly limited to matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in an arbitration may be entered in any court having jurisdiction; provided however, that
nothing contained herein shall be deemed to be a waiver, by any party that is a bank, of the protections afforded to it
under 12 U.S.C. §91 or any similar applicable state law.
19.4 No Waiver; Provisional Remedies. No provision hereof shall limit the right of any party to obtain provisional or
ancillary remedies, including, without limitation injunctive relief, attachment or the appointment of a receiver, from a
court of competent jurisdiction before, after or during the pendency of any arbitration or other proceeding. The
exercise of any such remedy shall not waive the right of any party to compel arbitration or reference hereunder.
19.5 Arbitrator Qualifications and Powers; Awards. Arbitrators must be active members of the State Bar or retired
judges of the state or federal judiciary of the state designated for governing law in Section 19.1, with expertise in the
substantive laws applicable to the subject matter of the Dispute. Arbitrators are empowered to resolve Disputes by
summary rulings in response to motions filed prior to the final arbitration hearing. Arbitrators(i) shall resolve all
Disputes in accordance with the substantive law of the governing law state, (ii) may grant any remedy or relief that a
court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make
effective any award, and(iii) shall have the power to award recovery of all costs and fees, to impose sanctions and to
take such other actions as they deem necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the applicable state's Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is$5,000,000 or less shall be decided by a single arbitrator who shall not render an award of
greater than$5,000,000(including damages, costs, fees and expenses). By submission to a single arbitrator, each
party expressly waives any right or claim to recover more than $5,000,000. Any Dispute in which the amount in
controversy exceeds$5,000,000 shall be decided by majority vote of a panel of three arbitrators; provided however,
that all three arbitrators must actively participate in all hearings and deliberations.
19.6 Judicial Review. Notwithstanding anything herein to the contrary,We may bring an appropriate action in small
claims courts for any Dispute in which amounts in controversy are within applicable thresholds for such courts.
Notwithstanding anything herein to the contrary, in any arbitration in which the amount in controversy exceeds
$5,000,000, the arbitrators shall be required to make specific,written findings of fact and conclusions of law. In such
arbitrations, the parties shall have in addition to the grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award, the right to judicial review of(A)whether the findings of fact rendered by the
arbitrators are supported by substantial evidence, and (B)whether the conclusions of law are erroneous under the
applicable substantive state law. Judgment confirming an award in such a proceeding may be entered only if a court
determines the award is supported by substantial evidence and not based on legal error under the applicable
substantive state law.
19.7 Damages. The arbitrator(s)will have no authority to award punitive or other damages not measured by the
prevailing party's actual damages, except as may be required by statute. The arbitrator(s) shall not award
consequential damages in any arbitration initiated under this Section. Any award in an arbitration under this Section
shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction
to pay a monetary amount.
19.8 Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action
required to conclude any arbitration proceeding within 180 days of the filing of the Dispute with the AAA. No arbitrator
or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for
Internet Merchant Agrmt-Weld county Govt Entities(CO) 01-29-04.doc 12
disclosures of information by a party required in the ordinary course of its business, by applicable law or regulation, or
to the extent necessary to exercise any judicial review rights set forth herein. This arbitration provision shall survive
termination, amendment or expiration of the Agreement or any relationship between the parties.
20. Entire Agreement, Amendments and Waivers
20.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all
prior agreements, understandings and communications between the parties with respect to the subject matter
hereof.
20.2 Amendments. This Agreement may be amended by Wells Fargo at any time upon thirty(30)days notice to You;
provided, however, that Wells Fargo will not remove or reduce Your right to terminate the Agreement under Section
15.3(Termination for Convenience) except with Your consent.
20.3 Waivers. The failure of a party to assert any of its rights under this Agreement, including, but not limited to, the
right to terminate this Agreement in the event of breach or default by the other party, will not be deemed to constitute
a waiver by that party of its right to enforce each and every provision of this Agreement in accordance with its terms.
20.4 No Waiver of Immunity. No portion of this Agreement shall be deemed to constitute a waiver of any immunities
the parties or their officers or employees may possess, nor shall any portion of this Agreement be deemed to have
created a duty of care which did not previously exist with respect to any person not a party to this Agreement.
20. 5 No Third Party Beneficiary Enforcement. It is expressly understood and agreed that the enforcement of the
terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved
to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by
any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity
other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental
beneficiary only.
21. No Partnership or Agency; Independent Contractors
No agency, partnership,joint venture or employment relationship is created between You and Wells Fargo by way of
this Agreement. In the performance of their respective obligations hereunder, the parties are, and will be,
independent contractors. Nothing in this Agreement will be construed to constitute either party as the agent for the
other for any purpose whatsoever. Neither party will bind, or attempt to bind,the other party to any contract or the
performance of any obligation, and neither party will represent to any third party that it has any right to enter into any
binding obligation on the other party's behalf.
IN WITNESS WHEREOF, this Wells Fargo Internet Merchant Agreement(Government Entities) has been
executed by the parties below as of the date first provided above.
WELLS FARGO BANK, N.A. and WELD COUNTY
WELLS FARGO MERCHANT SERVICES, LLC 915 10TH ST.
GRE EY, CO 80631
By: Srf ' By:
Name: / 'n -UI—Cf UOitr Name: Robert D. Masden
Title: ,cO2-121.6 Title: Chair (02/18/2004) fi
ATTEST: p x!
WELD COUNTY CLERK T RD
9 c
BY: CI_
DEPUTY CLERK TO H
Internet Merchant Agrmt-Weld county Govt Entities(CO) u1-29-04.doc ^ ^ 13
„� j-05.)3
W I J ES Wells Fargo Merchant Services,L.L.C.
MAC C7301-02H
1 _11*1,C1 1740 Broadway,2nd Floor
Denver,CO 80274
Bruce Barker
Weld County Attorney
915 10th St �v r «�kl LY
Greeley, CO 80631 Cjg c
1 FEB 0 6 2604
Scott A. Draudt
Wells Fargo Merchant Services
WELD COUNTY
1740 Broadway 2nd Floor ATTORNEY'S OFFICE
Denver, CO 80274
5 February 2004
Bruce
First let me say thank you again for all your hard work in bringing our agreement into
alignment with the government entities and the laws for State of Colorado. Per your request
I have signed one copy of the agreement for you and provided a second copy for your file.
The discount paid to Wells Fargo Merchant Services is covered by the 2.5% convenience
fee. As discussed on our call with Claud and Don the convenience fee covers the cost of
processing the transaction or discount cost associated with taking credit cards. There are
service fee's that are not covered in the convenience fee such as Charge back fee's,Voice
Authorization fee's and a minimum fee for account maintenance. The occurrence for
Charge back and Voice authorization fee's in the government sector are extremely small. As
such we bill back for these events when they occur. Weld County is only responsible for a
minimum fee when discount rates paid are below $25.00, then you are only responsible for
the difference between discounts paid and the minimum of fee of$25.00.
After the boards review if you have any questions please give me a call. We will need to
collect some additional data for implementation after we have the board's approval
Respectfully,
Scott A. Draudt
Wells Fargo Merchant Services
Sales Executive/Specialty Markets
MAC C7301-02H
1740 Broadway rd Floor
Denver,CO 80274
303-863-6419/303-863-5108 fax
we, yellsfaron enm
2004-0523
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