2011/06/29 Council Agenda Packet

8 Users shall be responsible for selecting and safeguarding their passwords for using the Services. As between Customer and Metavante, any use of the Services through use of a valid password shall be authorized use,provided that Metavante will cancel or disable any End User promptly following notification from Customer. C. Payment Fifes. Metavante will prepare payment files for Customer as Customer's third-party service provider and deliver the files to Customers designated ODFI(Originating Depository Financial Institution)(for ACH files)or transaction processor(for credit card files). Metavante's sole responsibility for any error in payment or reversed payment is to determine whether any mechanical, procedural, or processing problems occurred at Metavante during the preparation of the payment file (including but not limited to rejection of files)and,if necessary,reprocess and resubmit the payment file without additional charge. D. Statement Data. If Customer Is receiving bill presentment services,Metavante shall make statement data available for End Users to access through entities participating in Metavante's electronic bill presentment topovide network. E. Service ll use commercial the te performance standards ('Servilce evels)n set forth in the Service Level nSchedulfe.rtsPerformance at or above a Sthe Services in ervice Level rdance vrishall constitute satisfactory performance by Metavante. In the event that, at any time,a monthly Service Level report shows any material failure by Metavante to meet any of the Service Levels,Metavante shall:(i)within thirty(30)days after the date of delivery of such report, deliver to Customer a remedial plan showing in reasonable specificity and detail(A)Metavante's findings regarding the causes for such failure to meet Service Levels and(B)a remedial plan of actions reasonably designed to eliminate,prevent or reduce the future likelihood of recurrence of such causes; and (ii)diligentlyproceed to carry out such plan. Except for Customer's right to terminate for material breach in accordance with Section 8.2 hereof in the event that repeated,frequent,or specific material failures by Metavante to meet Service Levels constitute a material breach of this Agreement),the foregoing shall constitute the sole and complete remedy for Customer with respect to the corresponding failures by Metavante to meet Service Levels. 4.3. Professional Services. Metavante shall perform the Professional Services for Customer as set forth in the Services and Charges Schedule and the implementation Plan and shall perform additional Professional Services as mutually agreed upon by the parties from time to time under this Agreement, provided that either party may require execution of a separate mutually acceptable professional services agreement prior to Metavante's performance of Professional Services other than those set forth in the Services and Charges Schedule or the Implementation Plan. 4.4. New Services. if Customer wishes to receive any New Service which is included in Metavante's then-current standard pricing,Customer may notify Metavante and the parties may implement the same on a mutually acceptable time schedule. 5. FEES 5,1 Services and Charges Schedule, The fees for the Initial Services are set forth In the attached Services and Charges Schedule. Customer agrees to pay Metavante the fees specified in the Services and Charges Schedule for such services. Fees for New Services shall be as set forth In Metavante's then current standard pricing or,If applicable,the fees mutually agreed upon by the parties. 5.2 Excluded Costs,The fees set forth in the Services and Charges Schedule do not include Expenses,late fees or charges,or Taxes,all of which shall be the responsibility of Customer. In addition to the charges specified on the Services and Charges Schedule, Customer shall be responsible for(a)all interchange and network provider fees;(b)all dues,fees,fines and assessments established by and owed by Customer to Visa and/or MasterCard; (c) for all costs and fees associated with changes to ATM protocol caused by Customer's conversion to the EFT Services;and(d)any increase in postage charges. 5.3 Disputed Amounts, If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the parties, Customer shall pay the amounts due under this Agreement less the disputed amount, and the parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if(I)Customer delivers a written statement to Metavante within ninety(90)days after the due date of the invoice,describing in reasonable detail the basis of the dispute and the amount being withheld by Customer, (ii)such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Customer that are not in dispute have been paid in accordance with the terms of this Agreement 5.4 Terms of Payment.Any and all amounts payable under this Agreement shall be due thirty(30)days following the date of invoice,unless otherwise provided in the Services and Charges Schedule. Undisputed charges not paid by the applicable due date shall be subject to annual interest at the rate of 12%or the highest rate permitted by law,whichever is lower. Customer shall also pay any collection fees,court costs,reasonable attorneys'fees, and other fees,costs,and charges incurred by Metavante in collecting payment of the charges and any other amounts for which Customer is liable under the terms and conditions of this Agreement. 5.5 Modification of Terms and Pricing.Charges for all Services shall be as shown in the Services and Charges Schedule and are not subject to change during the initial Term. At the beginning of each Renewal Term,charges for all Services shall be adjusted to Metavante's then-current rates. Charges for Services for a particular Renewal Term shall remain the same during that Renewal Term, 6. PERFORMANCE WARRANTY/EXCLUSIVE REMEDY/DISCLAIMER OF ALL OTHER WARRANTIES 6.1 Performance Warranty. Metavante warrants that it will provide the Services in a commercially reasonable manner In substantial conformity with the Documentationthe°Performance Warranty'). THIS PERFORMANCE WARRANTY IS SUBJECT TO THE WARRANTY EXCLUSIONS SET FORTH BELOW IN SECTION 6.2. 6.2 Performance Warranty Exclusions. Except as may be expressly agreed in writing by Metavante,Metavante's Performance Warranty does not apply to: ©2010 Fidelity National Information Services,Inc.and its subsidiaries. 100453Everelt City of Payment Services Master Agreement(BSP B2C Services)-040411iiC 3 24