CM-2015-703 - 3/6/2015City of Round Rock
TEAS aoa< Agenda Item Summary
Agenda Number:
Title: Consider authorizing a Subscription Agreement for American Express
Card acceptance at the Round Rock Sports Center.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 3/6/2015
Dept Director: Susan Morgan, CFO
Cost:
Indexes:
Attachments: AMEX Subscription Agreement
Department: Finance Department
Text of Legislative File CM -7015-703
At the request of the Sports Center, Finance researched the possibility of accepting
American Express at the Sports Center for facility rentals. This agreement will allow the
Sports Center to accept American Express as form of payment. Currently it will only be
accepted at the Sports Center, but will be evaluated on a larger scale if the need arises.
Staff recommends approval
cHyeraoumao Paye f Printed on 31&1015
CITY OF ROUND ROCK
CONTRACT MANAGEMENT SECTION
CONTRACT APPROVAL FORM FOR CITY MANAGER ACTION
Required for Submission of Specific City Manager Items
Department Name: Finance Department Project Name: Subscription Agreement
American Express Travel Relatetl Services
Project Mgr/Resource: Susan Morgan Contracton Vendor: Company, Inc.
x�City Manager Approval
CMA Wording
Consider authorizing a Subscnption Agreement for American Express Card Acceptance at the Round Rock Sports Center.
Approval �/J
El Employee E.E. (Ric) Bowden✓ C�—elate February 26, 2015
A
SUBSCRIPTION AGREEMENT FOR AMERICAN EXPRESS ® CARD ACCEPTANCE
This instrument (the "Agreement") is between AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC. ("Contractor"), and the undersigned governmental entity ("Subscriber").
For good and valuable consideration, receipt of which is hereby acknowledged, Subscriber and
Contractor agree as follows:
1. The terms and conditions of the Agreement for American Express Card Acceptance (the
"Master Agreement") between the STATE OF TEXAS and Contractor shall be incorporated herein by
this reference as if fully set forth herein.
2. All terms used herein shall have the same meaning as in the Master Agreement, unless
specified to the contrary.
3. For purposes of this Subscription Agreement, the term "Subscriber" under the Master
Agreement shall mean the undersigned governmental entity.
4. Subscriber shall accept the Card under the terms of the Master Agreement at a minimum,
at all Subscriber locations where Subscriber accepts any other charge, debit or credit card payment
methods in payment for all goods and services sold (except as noted in the Master Agreement). In
addition, Subscriber represents that Subscriber has received all necessary approvals for Subscriber to
enter into this Agreement.
5. Tenn of A eg7 ement. Notwithstanding anything to the contrary contained herein, this
Subscription Agreement shall continue in effect for so long as the Master Agreement is in full force and
effect. If the Master Agreement terminates for any reason, this Subscription Agreement shall terminate
immediately without further notice.
6. All terms and conditions of the Master Agreement shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective as
of [ENTER EFFECTIVE DATE] .
[ENTER SUBSCRIBER]
i
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26 -Feb -2015
C M - gals `�l 03
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
AXP Restricted
Ronald C. Shultz
Vice President
Merchant Acquisition
Page If 1
AMENDMENT NO. 2
AGREEMENT FOR AMERICAN EXPRESS CARD ACCEPTANCE
BETWEEN
THE TEXAS CO:NPTROLLER OF PUBLIC ACCOUNTS
AND
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
This Amendment No. 2 to the Agreement for American Express Card Acceptance ("Agreement") between
the Texas Comptroller of Public Accounts ("Comptroller) and American Express Travel Related Services
Company, Inc. ("Contractor') is entered into by and between the Comptroller and the Contractor.
RECTTAI.S
WHEREAS, on July 21. 2000, the Comptroller and the Contractor entered into the Agreement; and
WHEREAS, the Comptroller and the Contractor executed an Amendment No. I that extended the term of
the Agreement through December 31, 2004; and
WHEREAS, the Comptroller and the Contractor now desire to execute this Amendment No. 2, which will
extend the term of the Agreement; modify the "Disputed Charges" section of the Agreement and add additional
terms as required by law:
NOW, THEREFORE, in consideration of mutual covenants and agreements, herein contained, the
Comptroller and the Contractor hereby agree to the following unandmetts:
r 1. Pursuant to the Section entitled Term & Termination of the Agreement, the arra of the Agreement is extended
for one (1) year, through on December 31. 2005 ("Extended Term') unless sooner terminated according to the
terms of the Agreement Comptrolla and Contractor each agree that at the end of the Extended Term, the
Agreement will continue in full force and effect on a calendar year basis unless and until one patty provides sixty
(60) days written notice of termination to the other party.
2. Comptroller and Contractor each agree to strike the "DISPUTED CHARGES" section on Page 9 of the
Agreement and replace it with the following new section NOed "DISPUTED CHARGES":
"DISPUTED CHARGES
If Contractor contacts Subscribers regarding a claim complaint, or question about any Charge (Disputed
Charge or if Contractor sends a Disputed Charge to Subscribers for a reply promptly after exercising
Contractor's right to Full Recouras from Subscribers, Subscribers shall respond to Contractor in writing within
twenty (20) days after Subscribers receive such Disputed Charge. Contractor will have the right to Full
Recourse from Subscribers in full for the amount of each such Disputed Charge or Contractor's previous
decision to exercise FLIT Recourse shall remain in effect, if, by the end of that time period, Subscribers have not
provided Contractor with it written substantive response to our inquiry that addresses all the aspects of the
Cardinenber's claim and includes all documentation Subscribers have or should have relating to the Disputed
Charge which enables Contractor to resolve the Disputed Charge. If a Cardmcmber, despite Subscribers reply
proving that Subscribers have provided the goods and/or services that are the subject of a Disputed Charge,
continues to withhold payment for such Disputed Charge and the Cardmember has the right under applicable
taw to withhold such payment, Contractor will have the right to FLIT Recourse for such Disputed Charge, or
Contractors previous decision to exereiso Full Recourse shall remain in effect"
3. The following section "I be added on Page 12 of the Agreement after the LIABILITY FOR TAXES
section:
"DEBTS OR DELINQUENCIES TO STATE Corrector acknowledges and agrees that, to
the extent Contractor owes any debt or delinquent taxes to the State of Tera, any payments or
other amounts Contrmtor is otherwise owed under or related to this Agreement may be applied
Page 1 of 8
12/14/2004 TUE 11:08 ITd/RL NO 70081 ®002
by the Comptroller of Public Accounts toward any debt or delinquent taxes Contractor owes
the State of Texas until the debt or delinquent taxes am paid in full. These provisions are
effmtiva at any time Connector owes any such debt or delinquency. Contractor shall comply
with rules adopted by the Comptroller under §§403.055, 403.0551, 2252.903, Tex Gott Code,
and other applicable laws and regulations regarding satisfaction of debts or delinquencies to the
State of Texas."
4. The section entitled SUPPORTING DOCUMENTS; INSPECTION OF RECORDS on Page 15 of the
Agreement shall be deleted in its entirety and the following substituted in its place:
"Supporting Documents; Right to Audit; Independent Audits. Contactor shall maintain
and retain supporting fiscal documents adequate to e$me that claims for Agrccment funds are
in accordance with applicable Comptroller and State of Texas requirements. Contractor shall
maintain all such documents and other records relating to this Agreement and the state's
property for a period of five (5) years after the date of submission of the final invoices or unfit
a resolution of all billing questions, whichever is later. Contractor shall make available at
reasonable times and upon reasonable notice, and for reasonable periods, all information
related to the State's property, such ae work papers, reports, books, data, tiles, software,
records, and other supporting documents pertaining to this Alimement, for purposes of
inspecting, monitoring, examining, or evaluating by Comptroller, the State of Texas or their
authorized representatives. Contractor shall cooperate with examinee and other authorized
Comptroller and State of Texas representatives and shall provide them with prompt access to
all of such State's property as requested by Comptroller or the State of Texas. By example and
not as an exclusion to other breaches or failures, Contractor's failure to comply with this
Section shell constitute a material breach of this Agreement and shall authorize Comptroller to
immediately assess liquidated damages in the amount of $1000 per day for such failure up to a
maximum of $5,000 for each such breach or failure. For purposes of this Section, the "State's
property" includes, but is not limited to, "Work" as deflu d in this Agreement In its
reasonable discretion and in good faith, Comptroller may require, at Contractor's sole cost and
expense, independent audits by a qualified certified public accounting firm of Contractor's
books and records or the Seta's property. The independent auditor shall provide Comptroller
with a copy of such audit at the same time it is provided to Contractor. Comptroller retain$ the
right to issue a request for proposals for the services of an independent certified public
accounting frm under this Agreement.
In addition to the and without limitation on the other audit provisions of this Agreement,
Furman to Section 2262.003, Tex Gov't Code, the state auditor may conduct an audit or
investigation of the Contractor or any other entity or person receiving funds from the state
directly under this Agreement or indirectly through a subcontract under this Agreement. The
acceptance of funds by the Contractor or any other entity or person directly under this
Agreement or indirectly through a subcontract under this Agreement ams as acceptance of the
authority of the ante auditor, under the direction of the legislative audit committee, to conduct
an audit or investigation in connection with those funds. This Agreement may be amended
unilaterally by the Comptroller to comply with any nil" and procedures of the state auditor in
the implementation and enforcement of Section 2262.003. Under procedures provided by the
state auditor on September 5, 2003, in addition to the above, (1) Contractor understands that
the acceptance of bends under this Agreement acts as acceptance of the authority of the state
auditor to conduct an audit or investigation in connection with those funds; (2) Contractor
further agrees to cooperate fully with the state auditor in the conduct of the audit or
investigation, including providing all records requested; and (3) Contractor shall ensure that
this paragraph concerning the authority to audit funds received indirectly by subcontractors
through Contractor and the requirement to cooperate is included in any subcontract it awards."
page 2 era
12/14/2004 TUB 11:08 1T1/R1 NO 70081 ®003
4. Appendices I through 3 are hereby incorporated into the Agreement and are listed on Exhibit A hereto.
Contractor will provide updated and current emtlficates of insurance to the Comptroller within ten (10) days of the
date of Contractor's execution of this Amendment No. 2.
5. This Amendment No. 2 shalt be effective as of the date it is signed by and for the Comptroller, after having first
been signed by the Contractor.
6. Except as expressly amended herein, all other terms of the Agreement, as amended, remain unchanged, are in
full force and effect, and are ratified and affirmed by the parties. By their execution and delivery of this
Amendment No. 2 neither parry waives or releases my default hereunder.
EXECUTED on this -el�4
� y� day of_" 2004, by a person having the authority to bind the Contractor
contractually.
American Express Travel Related Servicea Company, Inc.
By
(PAted Atone and tide)
Texas
on this ,,day ot,2004, by a person having the authority to bind the Comptroller
Page 3 of e
12/14/2004 111E 11:08 iTX/RT NO 70081 Q004
AMENDMENT No. 2
EXIMIIT A FORMS FOR RENEWAL
Appendix L: Non -Disclosure Agreement
Appendix 2.: Family Code Certifleation
Appendix 3: Execution of Agreement
Page 4 of 8
12/14/2004 TUE 11:08 iTX/RX NO 70081 ®005
APPENDIX
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
NON -DISCLOSURE AGREEMENT
In consideration of the Texas Comptroller of Public Amounts (Comptroller) exemising its option to extend is
agreement with Connector and because or the sensitivity of certain information which may be provided to
Connector, both parties agree that all infommtion regarding Comptroller or gadnered, produced, collected or derived
fynm or related to these servkm or provided to Connector m a result of Contractor's services to Comptroller
(Confidential Infimmation) most remain confidential subject to mime only upon prior writnen approval of
Comptroller, and more apecifically agree as follows:
1. The Conddcmal Information may be used by Contractor only to mist Contractor in connection with its contract
with Comptroller.
2. Contractor shall not, at any thee, use the Confidential lufametion in any fmhlon, form, or manner except in its
capacity as Contractor o Comptroller.
1 Connector agrees to rmintain the confidentiality of any and all Confidential Information related to this counsel
in the same manner that it protects the confidentiality of its own proprietary products of like kind.
4. The Confidential Informoation my not he copied, reproduced, disclosed or distributed without Comptrollers
prior written approval.
5. AD Confidential Information made available to Cannoctor, including copies thereof, wort be returned to
Comptroller upon the first to occur of. (a) completion of the contract, or (b) request by Comptroller.
6. The foregoing docs not prohibit Contractor's use, of the information (Including, but not limited o, ideas,
concepts, know-how, techniques and methodologies) (a) previously known to k (b) Independently developed by
it, (e) acquired by it Rom a third party, or (d) which is or becomes part of the public domain through no breach
by Contractor of this agreement.
7. This agreement shall become effective as of the date Confidential Information is that made available to
Contractor and shall survive the term of ten contract and be a continuing requirement
S. By their execution of this agreement, the parties agroo that the measure of daonagos in the event of a default by
Contractor tray be difficult or imposasbie to determine and may very with the nature of the default involved.
The parties fiuther agree that the amounts of liquidated damages set out below =present their beet estlmam, at
the effective data of this agreement, of actual damages which nary be suffered by the Comptroller as a direct
result of a breach of contract and are not imended by either patty to be a penalty. Com ptruger in its reasonable
discretion may reduce Wo amount ofliquidated denages set out below depending on the mature or severity of the
default. In lieu of the liquidated damages and in is reasonable discretion, Comptroller may pursue monetary
damages m available o Comptroller under the contract or any applicable law. The breach of this agrcemem by
Contractor shell etude Compuoll= to immediately terminate the corresponding contract upon written notice to
Contractor for such bresch. Rngardlesi of whether Comptroller elects to terminate such connect upon the
breach hereof Comptroller may require Contractor o pay o Comptroller the sum of $5,000 se liquidated
damages for each substantial breach involving release of Confidential Information. Comptroller docs non waive
my dght�q scek additonal relief, eitber equitable or otherwise, concerning any breach of this agreement.
zo1
American Express Travel Related Servj cs Company, Inc.
Page 5 of 8
12/14/2004 TUE 11:08 ITE/RE NO 70081 ®000
APPENDIX2
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
TEXAS F.kMMY CODE CERTIFICATION
If a Contractor is on the Texas Building and Procurement Commission's Centralized Master Bidders List, the
Contractor must certify as net forth below by signing and dating this forst In the blanks provided. All other
contractors must supply all the information required on this form.
Under Section 231.006, Family Code, Contractor certifies that the individual or business entity named in this Contract,
bid, proposal, or offer is not ineligible to receive the specified great, loan, or payment and acknowledges that this
Contract may be terminated and payment maybe withheld if this certification is inaccurate.
To comply with Section 231.006, this form must be signed by the person who is authorized to sign and submit a proposal
on behalf of a business entity that is subject to Section 231.006, and thereby binds Contractor. Ibis to= must be
returned with the executed amendment.
Silimmuf bthori• d Pars melT. Date Signed
Printed N e of Authorized personnel Title of Authorized Personnel
It the Contractor submitting this amendment is not on the Texas Building and Procurement Commission's
Centralized Master Bidders List, the following information must be completed before the Contractor's
amendment will be considered.
Please Circle Business type: Sole proprietorship partnership corporation other (explain)
Name and 3 ciai Security Numb f the individual or sole proprietor and/or each partner, shareholder. or owner
with an ownership interest of at least twenty-five percent (2S%) of Contractor:
Name
Name
Name
peg. 6 of 8
Social Security Number
Social Security Number
Social Security Number
Social Security Number
12/14/2004 TUE 11:08 [TX/RX NO 70081 U007
AGREEMENT FOR AMERICAN EXPRESS a CARD ACCEPTANCE
STATE OF TEXAS MASTER AGREEMENT
This agreement (Agreement) applies to acceptance of American Express® Cards. The words
Contractor and American Express mean Ammcm Express Travel Related Services Company,
Inc. and its subsidiaries, affiliates and licensees that issue Cards. Subscribers) mean the State of
Texas governmental entities that sign the Subscription Agreement for American ExpressID Card
Acceptance in the form found attached hereto in the Subscription Addendum which is
incorporated herein by reference. Comptroller means the State of Texas Office of Comptroller
of Public Accounts that is responsible for the negotiation of this Agreement and cerram othrr
responsibilities on behalf of the Subscribers as outlined in this Agreement. American Express
Card and Card mean any card or account access issued by American Express Travel Related
Services Company, Inc. or its or affiliates or its or their licensees, bearing the American Express
name or an American Express -trademark, service mark or logo. Cardntember means the person
whose name is embossed on the face of the Cud. Payments or purchases made with the Card are
Charges.
Subscriber shall accept the Card under the terms of this Agreement at all of Subscriber's
locations in payment for all goods and services sold for which Subscnber accepts any other
charge, credit, debit and/or smart card (to the extent allowed by applicable law and except as
noted below). This includes payments or purchases made in person, by telephone, by mail, via
the Internet or by any other method.. Each location or method of collecting payments is a
Location.
PROCESSORS
Comptroller may retain, at its expense, a third party approved by Contractor (Processor) for
obtaining Authorizations and/or submitting Charge Data on behalf of Subscribers. Comptroller,
and not American Express, is responsible for any errors, omissions, delays or expenses caused by
its Processor. Comptroller shall provide Contractor with all relevant information (to the extent
allowed by applicable law) that Contractor requests about Comptroller's Processor and
Comptroller shall notify Contractor promptly in writing if Comptroller changes its Processor.
GROSS PAYMENT
When Contractor pays Comptroller in United States Dollars for the face amount of Charges
submitted, Contractor will deduct any credits submitted. Separately, Contractor will debit the
Comptroller: 1) any amounts the Subscriber(s) owe Contractor (except for the Discount); and 2)
any amounts for which Contractor has Full Recourse. The Discount will not be deducted from
the face amount of the Charges submitted. Instead, Contractor will debit the designated ACH
Account monthly for the aggregate Discount with respect to all of that month's Charges. In cr,!,r
to be eligible for this option, Comptroller must: 1) submit all Charges to Contractor
electronically: 2) receive all payments electronically via ACH; and 3) be paid on the Basic (2 -
day) Payment Plan. Comptroller may not receive payment on behalf of any other entity except
for Subscribers.
Discount Rate
The Discount is the amount Contractor charges Subscribers for accepting the Card. The initial
Discount rate is the percentage set forth on the signature page of this Agreement. Effective
every April 1st (beginning after the first full calendar year of Card acceptance hereunder)
Contractor may adjust the Discount rate. Contractor further has the right to adjust the Discount
rate at any time upon sixty (60) days written notice to Subscribers and Comptroller.
Payment Merlind
Under the Electronic Pay Program (Electronic Pay), funds are sent electronically via -^e
Automated Clearinghouse of the Federal Reserve System (ACF). Comptroller most inform
Contractor of the designated demand deposit account (Account) at a bank (Bank) that participates
in ACH. Contractor will initiate payment to the designated Account via ACH within two (2)
business days (excluding Sunday and any Federal Reserve holiday) after Contractor receives and
processes the applicable Charges. If the payment date falls on a day that Contractor's bank is not
open for processing ACH payments, Contractor will initiate payment on the next day that
Contractor's bank is open for processing ACH payments. Contractor will not be responsible for
any obligations or liabilities including, but not limited to, incidental or consequential damages
over and above the amount of the applicable debit, credit or adjustment to the Account in the
event that any such debit, credit or adjustment is not honored by the Bank or is improperly
applied to the Account. Furthermore, Contractor is not responsible for the remittance. or
timeliness thereof, of payment from Comptroller to Subscriber.
DISPUTE RESOLUTION
Chapter 2260 of the Government Code prescribes dispute resolution processes for certain breach
of contract claims applicable to certain contracts for goods and services. Comptroller and/or
Subscribers may adopt rules under chapter 2260 as described in that statute.
If and to the extent that Chapter 2260 applies to this Agreement and to a specific breach of
contract claim under this Agreement, the following shall apply:
The dispute resolution process provided for in Chapter 2260 of the Govemment Code shall
be used, as further described herein, by Comptroller and/or Subscribers and Contractor to
attempt to resolve any claim for breach of contract made by Contractor under this
Agreement:
(A) Contractor's claim for breach of this Agreement that the parries cannot resolve in the
ordinary course of business shall be submitted to the negonation process provided in
Chapter 2260. To initiate the process, Contractor shall submit written notice, as required
by Chapter 2260, to the Deputy Comptroller and/or Subscriber contact or their designee
as applicable. Said notice shall also be given to all other representatives of Comp^.oll r
and/or Subscriber(s) and Contractor otherwise entitled to notice under this Agreement.
Compliance by Contractor with Chapter 2260 is a condition precedent to the filing of a
contested case proceeding under Chapter 2260.
(B) The contested case process provided in Chapter 2260 is Contractor's sole and exclusive
process for seeking a remedy for an alleged breach of contract by Comptroller and/or
Subscriber if the parties are unable to resolve their disputes under subparagraph (A) of
this section.
(C) Compliance with the contested case process provided in Chapter 2260 is a condition
precedent to seeking to sue from the legislature under Chapter 107, Civ. Prac. and Rem.
Code. Neither the execution of this Agreement by Comptroller and/or Subscriber nor any
other conduct of any representative of Comptroller and/or Subscriber relating to this
Agreement shall be considered a waiver of sovereign immunity to suit.
If and to the extent that Chapter 2260 does not apply to this Agreement or to a specific breach of
contract claim or a dispute under this Agreement, the following shall apply:
Should a dispute arise dut of this Agreement, Comptroller and/or Subscriber, and
Contractor shall first attempt to resolve it through direct discussions in a spirit of mutual
cooperation. If the parties' attempt to resolve their disagreements through negotiations
fail, the dispute will be mediated by a mutually acceptable third party to be chosen by
Comptroller and/or Subscriber, and Contractor within fifteen (15) days after written
notice by one of them demanding mediation under this section. Contractor and
Comptroller and/or Subscriber shall equally pay all costs of the mediation unless
Comptroller and/or Subscriber does not have sufficient appropriations for such costs
after reasonably seeking to provide such monies. By mutual agreement, Comptroller
and/or Subscriber and Contractor may use a non-binding form of dispute resolution other
than mediation. The purpose of this section is to reasonably ensure that Comptroller
and/or Subscriber and Contractor shall in good faith utilize mediation or another non-
binding dispute resolution process before pursuing litigation. Comptroller's and/or
Subscriber's participation in or the results of any mediation or another non binding
dispute resolution process under this Section or the provisions of this Section shall not be
Construed as a waiver by Comptroller and/or Subscriber of (1) any rights, privileges,
defenses, remedies or immunities available to Comptroller and/or Subscriber as an
agency of the State of Texas or otherwise available to Comptroller and/or Subscriber; (2)
Comptroller's and/or Subscriber's termination rights; or (3) other termination provisions
or expirations dates of this Agreement.
Norcitbstanding any other provision of this Agreement to the contrary, Contractor shall continue
performance and shall not be excused from performance during the period any breach of contract
claim or disputing is pending under either of the above processes.
ASSIGN"MEN"T
Comptroller may not assign this Agreement. Contractor may assign this Agreement. to
Contractor's parent, subsidiaries, or affiliates.
Charee Records
5
For every Charge, Subscriber(s) shall create a record of Charge (Charge Record) or an electronic'
reproducible record containing: 1) the Card account number and expiration date; 2) the date the
Charge was incurred; 3) the amount of the Charge, which must be the total amount of the
payments or purchases on the Card plus applicable taxes; 4) the Authorization approval code
number; 5) a mutually acceptable description of the goods or services purchased; 6) an imprint or
other registration of its name, address, and the account number (Merchant Number) assigned for
such Location(s); 7) the Cardmembees signature; and 8) the words "No Refunds" if they have a
No Refund policy. -
In Person Charges
For Charges made in person, Subscriber(s) shall:
)
Create a Charge Record as ddcribed above and verify that the Cardmember's signature on
the Charge Record reasonably matches the signature on the back of the Card;
Verify that the Card is not visibly altered or mutilated;
Ensure that the Card is being used within the valid dates shown on the face of the Card:
Verify that the Card is signed in the same name as the name embossed on the front of the
Card;
Obtain Authorization as described below.
Other Charaes
For all other Charges, such as Charges made by mail, telephone, via the Internet or at unattended
Locations, Subscriber(s) shall:
Create a Charge Record as described above, except with the words "Mail Order," "Telephone
Order", "Internet Order" or "Signature on File" on the Cardmember signature line; and
Obtain Authorization as described below.
If the Cardmember denies making or authorizing such a Charge and Subscriber has not obtained
the Caramember's signature for the Charge, Contractor will have the right to Full Recourse for
such Charge. Contractor will not have the right to Full Recourse for such a Charge based upon a
claim that the goods were not received if Subscriber has: 1) verified that the address to wfiich the
goods were shipped is the Cardmember's billing address; and 2) obtained a signed receipt
verifying the delivery of the goods to the Cardmember at such address.
Authorization
t
Subscriber(s) shall obtain an authorization approval code number from Contractor as described
below (Authorization). Each Authorization request must be for the total amount for payments or
purchases plus applicable taxes. Authorization is not a guarantee that Contractor will accept the
Charge without Full Recourse, nor is it a guarantee that the person making the Charge is the
Cardmember. Subscriber(s) shall not obtain Authorization on behalf of any other entity.
Subscriber(s) shall obtain Authorization for every Charge regardless of amount. If a
Subscriber's terminal is unable to reach Contractor's computer authorization system for
Authorization, Subscriber shall obtain Authorization for all Charges by calling Contractor at i
Contractor's authorization telephone number. Subscriber(s) shall be charged 65 cents for each
Charge for which Subscriber(s) request authorization by telephone unless such failure to
electronically authorize is due to Contractor's computer authorization system being inoperable.
Contractor retains the right to change the amount Contractor charges to Subscriber(s) for
requesting Authorization by telephone at any time with thirty (30) day written notice.
Subscriber(s) shalt obtain Authorization for all Charges described in the section entitled "Other
Charges" and for all Recurrent Billing Charges regardless of the Authorization method and the
amount of the Charge.
For Charges for goods or services which are shipped or provided more than thirty (30) days after
the order is made, Subscriber(s) shall obtain Authorization for such Charge at the time the order
is made and again immediately before Subscriber(s) ships the goods or provides the services to
the Cardmember. -
Credits
When Subscriber(s) gives a refund for a purchase made with a Card, Subscriber must credit that
Card account (Credit). Subscriber(s) must create a record of Credit (Credit Record) and submit
the Credit to Contractor within seven (7) days of determining the Credit is due. Subscriber(s)
shall issue Credits only for Charges made with the Card. Subscriber(s) shall not give a cash
refund for goods or services purchased with the Card. -
\onrithstanding the foregoing Comptroller may issue a warrant (i.e. check) on behalf of a
Subscriber, in lieu of a Credit, in one instance: for Charges that constitute a payment of taxes
owed by the Cardmember to the State of Texas in which the warrant process is the only process
for refunds for payments (or Charges) of such type. In such an instance, Subscriber or
Comptroller must notify the Cardmember at the time of the Charge that the only way to receive a
refund for this Charge is by the issuance of a warrant and not through a credit to the
Cardmembers Card account and the Cardmember must agree. Regardless of whether a warrant
has been issued to the Cardmember, Contractor retains the right to Full Recourse for the
applicable Charge in accordance with this Agreement.
Transmissions must comply with the specifications Contractor provides and must contain
information required by Contractor, including, but not limited to the Establishment number
Contractor assigns and a description of the goods or services purchased which is acceptable to
Contractor. At Contractor's request Subscribers and/or Comptroller shall place additional, less
or differently formatted information on Transmissions within sixty (60) days written notice from
Contractor. Contractor is not obligated to accept any Transmission that does not comply with
Contractor's requirements.
Recurrent Billina
If Subscribers offer automatic recurrent billing for a series of separate purchases, Cardmembers
must sign a consent form (Consent Form) authorizing Subscribers to charge Cardmembers' Card
accounts for specific amounts at specific times (Recntrrenz Billing Charges). Subscribers shall
obtain a Consent Form before submitting the first Recurrent Billing Charge. The Consent Form
Refunds
Subscriber's refund policy for purchases made with the Card must be at least as favorable as
Subscriber's refund policy for purchases made with any other form of payment. Subscriber(s)
shall disclose their refund policy to Cardmembers at the time of the purchase and in a manner
that complies with applicable late.
;
Submission and Acceptance of Charges and Credits
i
Subscribers shall submit all Charges to Contractor within seven (7) days of the date Charges are
}
incurred; provided, however, that Subscribers shall not submit any Charge until the goods or
services purchased have been delivered to the Cardmember. Subscribers or the Comptroller
shall submit Credits as described above in "Credits." Charges and Credits will be deemed
accepted on a given business day if received and processed before Contractor's close of business
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for that day at the location Contractor designates. Subscribers shall not submit Charges or
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Credits on behalf of any other entity and the Comptroller shall not submit Charges or Credits on
behalf of any entity that is not a Subscriber.
Subscribers and Comptroller warrant that all indebtedness arising from Charges submitted in
_
accordance with this Agreement are genuine and free of any liens, claims or encumbrances.
Subscribers and Comptroller aclatowledge that neither parry has any right to bill and/or collect
from any Cardmember for any purchase made with the Card unless Contractor has exercised
Contractor's right to Full Recourse with respect to that Charge and Subscribers and/or
Comptroller have the right to collect under applicable laws and regulations.
When Subscribers and/or Comptroller submit Charges and Credits electronically (Charge Data),
Subscribers and/or Comptroller shall do so over communications lines (Transmission). Even if
Subscribers and/or Comptroller transmit Charge Data electronically Subscribers and/or
Comptroller that transmitted shall still create and retain Charge Records and Credit Records.
In the event that Charges and Credits are submitted on paper, Subscribers and/or Comptroller
shall submit Charge Records and Credit Records on forms approved by Contractor and in
accordance with the instructions Contractor provides and containing the information Contractor
requires, including but not limited to the Merchant Number Contractor assigns.
Transmissions must comply with the specifications Contractor provides and must contain
information required by Contractor, including, but not limited to the Establishment number
Contractor assigns and a description of the goods or services purchased which is acceptable to
Contractor. At Contractor's request Subscribers and/or Comptroller shall place additional, less
or differently formatted information on Transmissions within sixty (60) days written notice from
Contractor. Contractor is not obligated to accept any Transmission that does not comply with
Contractor's requirements.
Recurrent Billina
If Subscribers offer automatic recurrent billing for a series of separate purchases, Cardmembers
must sign a consent form (Consent Form) authorizing Subscribers to charge Cardmembers' Card
accounts for specific amounts at specific times (Recntrrenz Billing Charges). Subscribers shall
obtain a Consent Form before submitting the first Recurrent Billing Charge. The Consent Form
must include the Cardmember's name, Card account number and signature; the amount of each
Recurrent Billing Charge; the frequency of such Recurrent Billing Charges; the date the
Recurrent Billing Charges will begin and end; and a statement that the Cardmember may cancel
the Consent Form at any time. Subscribers shall retain Consent Forms for twenty-four (24)
months from the date Subscriber submits the last Recurrent Billing Charge. Before submitting
each Recurrent Billing Charge, Subscribers shall obtain Authorization and complete a Charge
Record except with the words "Signature on File" on the Cardmember signature line.
Document Retention
For each Charge and/or Credit, Subscribers and/or Comptroller shall retain the original Charge
Record or Credit Record and all documents evidencing such transaction or reproducible record
thereof, for twenty-four (24) months from the later of the date (i) the Charge or the Credit was
submitted to Contractor or (ii) Subscribers have fully delivered the goods or provided the
services purchased. Subscribers and/or Comptroller, as appropriate, shall provide a copy of the
Charge Record or Credit Record and other supporting documents to Contractor within twenty
(20) calendar days of Contractor's request and Subscribers and/or Comptroller acknowledge that
Contractor will have the right to Full Recourse with respect to any Charge for which Subscribers
and/or Comptroller fail to provide such documents within such time period.
Honoring Cards
Subscribers shall honor Cards properly presented in accordance with this Agreement and to
fulfill all obligations under this paragraph. When a customer asks what payment methods
Subscribers accept, Subscribers shall mention the American Express Card. When a Cardmember
makes or requests to make a purchase with the Card, Subscribers shall: not try, in any way, to
persuade the Cardmember to use any other payment method; not offer to extend credit or charge
services to the Cardmember for that transaction through Subscribers own or any other charge,
credit, debit or similar card or service; and not criticize or mischaracterize the Card. Subscribers
agree not to stare or publish a preference for any other charge, credit, debit or similar card or
service oQer the Card. Except for special promotions of limited duration funded by an issuer of
another charge, credit or debit card, Subscribers shall not promote the use of any other charge,
credit, debit or similar card or service more actively than Subscribers promote the use of the
Card.
Subscribers shall display American Express signs, decals and other identification prominently at
Subscriber Establishments, including Contractor's "Take -One" containers filled with Card
application fortes, to the same extent that Subscribers display such identification for other
charge, credit, debit or similar cards or services.
FULL RECOURSE
Full Recourse means that Contractor has the right to payment from Subscribers for the full
amount of each Charge subject to such right. Contractor may deduct, recoup and offset such
amount from payments to Subscribers or Subscribers shall pay Contractor promptly upon receipt
of Contractor's invoice. Contractor shall have Full Recourse if Subscribers do not comply with
the terms of this Agreement with respect to a Charge(s), even if Contractor had notice when
Contractor paid Subscribers for the Charge(s) that Subscribers did not so comply and even if
Subscribers obtained Authorization for the Charge(s) in question. Contractor will also have the
right to Full Recourse as provided elsewhere in this Agreement j
DISPUTED CHARGES j
If Contractor contacts Subscribers regarding a claim, complaint, or question about any Charge
(Dispnred Charge), Subscribers shall respond to Contractor in writing within twenty (20) days '
after Contractor contacts Subscribers. Contractor will have Full Recourse for the amount of each I
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such Disputed Charge if, by the end o7 that time period, Subscribers have not provided !
Contractor with a written substantive response to Contractor's inquiry that addresses all theij
aspects of the Cardmember's claim and includes all documentation Subscriber does have or ,
should have relating to the Disputed Charge which enables Contractor to resolve the dispute. If a
Cardmember, despite Subscriber's reply, continues to withhold payment for such Disputed
Charge and the Cardmember has the right under applicable law to withhold such payment,
Contractor will have the right to Full Recourse for such Charge.
PROHIBITED TRANSACTIONS
Subscribers shall not accept the Card for: Capital obligations and/or extraordinary expenses,
including penalties or fines of any kind (except for those permitted under applicable taw),
damages, losses or any other costs or fees that are beyond the normal basic fee for the goods or
services provided; gambling services (including lottery tickets), gambling chips or gambling
credits: cash: goods which will be resold; sales by third parties; or amounts which do not
represent a bora fide sale of goods or services at a Location.
CONFIDENTIALITY
To the extent permitted by applicable law, Comptroller, Subscribers and Contractor shall keep
confidential and not disclose to any third parry the terms of this Agreement and any information
received from the other that is not publicly available.
To the extent permitted by applicable law. Subscribers and Comptroller agree that the names,
addresses and account numbers of Cardmembers are the sole and exclusive property of American
Express. Subscribers and Comptroller shall not use or disclose any Cardmembers name, address
or account number except as provided in this Agreement.
Notwithstanding the foregoing, Contractor recognizes and understands that Subscribers and
Comptroller are Agencies of the State of Texas and are subject to the Texas Public Information
Act (formally the Texas Open Records Act).
TRADEMARKS AND SERVICE MARKS
This Agreement does not give any part„ Subscribers, Comptroller or Contractor, any rights in
any other party's name, logo, service marks, trademarks, trade names, taglines or any other
proprietary designation (Mark). No use may be made of another party's Marks without the prior
written permission of that party which will not be unreasonably withheld. Where Subscribers or
Comptroller mention the Card as a payment method they shall use Contractor's Marks, but only i
as described in Contractor's logo sheets. Subscribers agree that Contractor may list Subscriber's
name and address and Subscriber's Location(s) in materials containing lists of establishments
which accept the Card which Contractor may publish from time to time.
NOTICES
Any written notices required under this -Agreement will be by either hand delivered to the
receiving party listed below or by U.S. Mail, certified, return receipt requested, addressed to the
appropriate address. Notice will be effective on receipt by the affected party. Either party may
change the designated notice address in this Section by written notification to the other party.
Unless otherwise notified,
Comptroller will send all notices to:
American Express Travel Related
Company, Inc.
1661 E. Camelback
Phoenix, AZ 85016 Camelback
Attn: SE Maintenance Unit
INDE-UNIFICATION
Notices will be sent to
Comptroller at:
Texas Comptroller of Services
Public Accounts
PO Box 12608
Austin. Texas 78711
Attn: Cash Management
Programs
Comptroller andtor Subscriber(s), as agencies of the State of Texas and to the extent authorized
by the Constitution and laws of the State of Texas, shall indemnify and hold harmless
ContractSr, its parent, subsidiaries, affiliates, licensees, successors and assigns from and against
any and all damages, losses. costs and/or expenses including, but not limited to, reasonable
attorneys' fees. arising from Comptroller's and/or Subscriber's own acts or omissions in
connection with the relationship established by this Agreement including. but not limited to, the
breach of this Agreement by Comptroller or Subscriber(s) as applicable provided, however, that
this agreement for Comptroller and/or Subscriber to indemnify and hold harmless American
Express shall in no way be construed to constitute a waiver by Comptroller andtor Subscribers of
their sovereign immunity as agencies of the State of Texas, or of anv of their defenses, privileges
and immunities as agencies of the State of Texas.
Contractor shall indemnify and hold harmless Comptroller and Subscribers, and/or their officers
and employees, from and against any and all damages, losses, costs and'or expenses including,
but not limited to, reasonable attorneys' fees, arising from Contractor's acts and omissions in
connection with the relationship established by this Agreement including, but not limited to, the
breach of this Agreement by Contractor.
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TERM & TEPWINATION
This Agreement will commence on the Effective Date and continue for a period of three (3)
years (Initial Term) unless terminated sooner (in accordance with its terms) by either party, in its
sole discretion, upon sixty (60) days prior written notice at the applicable address referenced in
the "Notices" section of this Agreement. After the Initial Term, this Agreement may be
extended up to three (3) times for one (1) year each by mutual agreement. After the Initial Term,
either party may terminate the Agreement by written notice. Such termination will be effective
sixty (60) days after receipt of such notice: Notwithstanding the foregoing, continuation of this
Agreement and each Subscription Agreement beyond August 31, 2001 is contingent upon
continued availability of funds appropriated by the Texas Legislature. Furthermore, in the event
that Comptroller terminates this Agreement, Subscribers that initiated their Card Acceptance
relationship by signing the Subscription Agreement for American ExpressD Card Acceptance in
the form found attached hereto in The Subscription Addendum are automatically terminated.
Likewise, any Subscribers that signed their own Agreement for American Express® Card
Acceptance may continue acceptance in accordance with their Agreement. The termination of
Card Acceptance by a Subscriber will have no effect on the continuance of this Agreement.
In the event that Subscribers and/or Comptroller state or publish a preference for any other
charge, credit, debit or similar card or service over the Card, and in addition to any and all other
rights and remedies Contractor may have under this Agreement and/or in law or in equity,
Contractor shall have the right to immediately terminate this Agreement upon Contractor
sending written notice of such termination to Comptroller.
This Agreement is an Agreement to extend financial accommodations and that if insolvency
proceedings or similar proceedings are filed with respect to Subscriber(s) and/or Comptroller,
this Agreement is automatically terminated. If Subscriber(s) and/or Comptroller cease or
adversely alter their operations, or if Subscriber(s) and/or Comptroller sell all or substantially all
of their assets or stock, or if Subscriber(s) and/or Comptroller becomes insolvent, or if
Contractor* receives a disproportionate number of Cardmember inquiries or complaints relating
to Charges at Subscribers' Locations or if Contractor has reasonable cause to believe that
Subscriber(s) and/or Comptroller will not be able to perform all their obligations under this
Agreement, Contractor may, in Contractor's discretion, immediately terminate this Agreement.
Subscriber(s) andfor Comptroller must notify Contractor immediately if any of the above events
occur.
Upon termination, Subscribers and/or Comptroller must: 1) remove all American Express
identification and return Contractor's materials and equipment immediately; 2) submit any
Charges incurred prior to the termination in accordance with this Agreement; and 3) submit any
Credits relating to these Charges in accordance with this Agreement. Rights under the sections
entitled "Full Recourse," "Disputed Charges," "Confidentiality," "Indemnification," "Gross
Payment' and "Termination" shall survive termination of this Agreement.
FAMILY CODE
Under Section 231.006 of the Texas Family Code (relating to Child support), Contractor
represents and warrants that Contractor is not ineligible to receive the specified payment and
acknowledges that this Agreement may be terminated and payment withheld if this
representation and warranty is inaccurate.
ELIGIBILITY
Contractor certifies that Contractor holds a permit issued by Comptroller to collect or remit all
state and local sales and use taxes that become due and owing as a result of the entity's business
in Texas, or certifies that Contractor does not sell tangible personal property or services that are
subject to the state and local sales and use tax. Under Section 2155.004 of the Texas
Government Code (relating to certain taxes), Contractor represents and warrants that Contractor
is not ineligible to receive this Agreement and acknowledges that this Agreement may be
terminated and payment withheld if this representation and vvaranty is inaccurate. Contractor
represents and warrants that Contractor is not delinquent in the payment of any franchise tares
owed the State of Texas.
LIABILITY FOR TAXES
Contractor represents and warrants that Contractor shall pay all taxes or similar amounts
resulting from this Agreement including, but not limited to, any federal, state, or local income,
sales or excise taxes of Contractor or Contractor's employees. Comptroller and Subscribers shall
not be liable for any such taxes resulting from this Agreement.
HUBS
Contractor represents and warrants that Contractor shall comply with the Historically
Underutilized Business requirements of this Agreement by completing Part D of the HUB
Participation Form.
AMENDMENTS
Except as otherwise provided in this Agreement, this Agreement may be amended only upon
written agreement between Comptroller and Contractor; however, this Agreement may not be
amended so as to make it conflict with the laws of the State of Texas.
TIME LDIITS
Time is of the essence in the performance of this Agreement. Contractor shall strictly comply
with all of the deadlines, requirements, and Standards of Performance for this Agreement.
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S
COMPLIANCE WITH LAW'S/VENUE
This Agreement will be governed and construed under and in accordance with the laws of the
State of Texas. Any and all obligations or payments under the Agreement are due and payable in
Travis County, Texas, and venue is proper in only such county.
PARTIALLY COMPLETED WORK
No later than the first calendar day atter-the termination of this Agreement or a time period
otherwise agreed upon, or at Comptroller's request, Contractor shall deliver to Comptroller all
completed, or partially completed, work and any and all documentation or other products and
results of these services. Failure to timely deliver such work or any and all documentation or
other products and results of the services shall be considered a material breach of this
Agreement. Contractor shall not make or retain any copies of the work or any and all
documentation or other products add results for the services without the prior written consent of
Comptroller unless required by applicable law.
FEDERAL, STATE, AND LOCAL REQUIREMENTS
Contractor shall demonstrate on-site compliance with the Federal Tac Reform Act of 1986,
Section 1706, amending Section 530 of the Revenue Act of 1978, dealing with issuance of Form
W -2's to common law employees. Contractor is responsible for both Federal and State
Unemployment insurance coverage and Standard Worker's Compensation Insurance coverage.
Contactor shall comply with all Federal and State tax laws and withholding requirements.
Comptroller and Subscribers shall not be liable to Contractor or Contractor's employees for any
Unemployment or Workers' Compensation coverage, or Federal or State withholding
requirements. Contractor shall indemnify Comptroller and Subscribers and pay Comptroller
and/or Subscriber(s) all costs, penalties, or losses resulting from Contractor's omission or breach
of this Section.
SEVERABILITY CLAUSE
In the event that any provision of this Agreement is later determined to be invalid, void, or
unenforceable, then the remaining terms, provisions, covenants, and conditions of this
Agreement shall remain in full force and effect, and shall in no way be affected, impaired, or
invalidated.
APPLICABLE LAW AND CONFORMING AMENDMENTS
Contractor shall comply with all laws, regulations, requirements and guidelines applicable to a
Contractor providing similar services to Comptroller and/or Subscriber(s), as these laws,
regulations, requirements and guidelines currently exist and as they are amended throughout the
term of this Agreement. Comptroller reserves the right, in its sole discretion, to unilaterally
amend this Agreement throughout its term to incorporate any modifications necessary for
Comptroller's, or Subscriber's, or Contractor's compliance with all applicable state and federal
13
laws, regulations, requirements and guidelines as are reasonable and do not hinder Contractor's
ability to perform in accordance with this Agreement If such a change does hinder Contractor's
ability to perform Contractor's duties in accordance with this Agreement, then Contractor retains
the right to terminate this Agreement in accordance with this Agreement.
NO NAIVER
This Agreement shall not constitute or be construed as a waiver of any of the privileges, rights,
defenses, remedies, or immunities available to Comptroller and/or Subscribers as agencies of the
State of Texas or otherwise available to Comptroller and/or Subscribers. The failure to enforce
or any delay in the enforcement of any privileges, rights, defenses, remedies, or immunities
available to either party under this Agreement or under applicable law shall not constitute a '
waiver of such privileges, rights, defenses, remedies or immunities or be considered as a basis
for estoppel. Comptroller and Subscribers do not waive any privileges, rights defenses, or
immunities available to Comptroller and Subscribers as agencies of the State of Texas, or
otherwise available to Comptroller and Subscribers, by entering into this Agreement or by its
conduct prior to or subsequent to entering into this Agreement.
NO LIABILITY UPON TERMINATION
If this Agreement is terminated for any reason, Comptroller, Subscribers, and the State of Texas
shall not be liable to Contractor for any damages, claims, losses, or any other amounts arising
from or related to any such termination.
INDEPENDENT CONTRACTOR
Contractor shall serve as an independent Contractor in providing services under this Agreement.
Contractor's employees are not and shall not be construed as employees of Comptroller or
Subscribers.
LIMITATION ON AUTHORITY; NO OTHER OBLIGATIONS
Contractor shall have no authority to act for or on behalf of Comptroller, or Subscribers, or the
State of Texas except as expressly provided for in this Agreement; no other authority, power or
use is granted or implied. Contractor may not incur any debts, obligations, expenses, or liabilities
of any kind on behalf of Comptroller, Subscribers, or the State of Texas.
NO OTHER BENEFITS
Contractor shall have no exclusive rights or benefits other than those set forth herein.
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PATENT, TRADEMARK, COPYRIGHT AND OTHER INFRINGEMENT CLAIMS
Contractor shall indemnify, save and hold harmless Comptroller, Subscribers, and the State of
Texas from and against claims of patent, trademark, copyright, trade secret or other proprietary
rights, violations, or infringements arising from Comptroller's, or Subscribers, or Contractor's
use of or acquisition of any services or other items provided to Comptroller and/or Subscribers
by Contractor or otherwise to which Comptroller and/or Subscribers have access as a direct
result of Contractor's performance under this Agreement, provided that Comptroller or
Subscriber shall notify the Contractor of any such claim within a reasonable time of receiving
notice of any such claim. Contractor "shall pay all reasonable costs of Comptroller's or
Subscriber's counsel. If Contractor is notified of any claim subject to this Section, Contractor
shall notify Comptroller and/or Subscriber of such claim within five (5) working days of such
notice. if Comptroller and/or Subscriber determines that a conflict exists between its interests
and those of Contractor, or if Comptroller and/or Subscriber is required by applicable law to
select separate counsel, Comptroller and/or Subscriber shall be permitted to select separate
counsel and the reasonable costs of such Comptroller's and/or Subscriber's counsel shall be paid
by Contractor. No settlement of any such claim shall be made by Contractor without
Comptroller's and/or Subscriber's prior written approval. Contractor shall reimburse
Comptroller and/or Subscriber and the State of Texas for any claims, damages, losses, costs,
expenses, judgements or any other amounts, including, but no limited to, attorney's fees and
court costs, arising from any such claim. Contractor represents that it has determined what
licenses, patents, and permits are required under this Agreement and has acquired all such
Licenses, patents, and permits.
SUPPORTING DOCUMENTS; INSPECTION OF RECORDS
Contractor shall maintain and retain supporting fiscal documents adequate to ensure that claims
for Agreement funds are in accordance with applicable State of Texas requirements. These
supporting fiscal documents shall be maintained and retained by Contractor for a period of four
(4) years after the date of submission of the final invoices or until a resolution of all billing
questions, whichever is later (usually two (2) years). Contractor shall make available at
reasonable times and upon reasonable notice, and for reasonable periods, work papers, reports,
books, records, and supporting documents pertaining to this Agreement for purposes of
inspecting, monitoring, auditing, or evaluating by Comptroller or the State of Texas.
DTPA; UNFAIR BUSINESS PRACTICES
Contractor, to the best knowledge of the individual signing on Contractor's behalf, represents
and warrants that Contractor has not been the subject of a Deceptive Trade Practices Act or any
unfair business practice administrative hearing or court suit and that Contractor has not been
found guilty of such practices in such proceedings. Contractor certifies, to the best knowledge of
the individual signing on Contractor's behalf, that Contractor has no officers who have served as
officers of other entities who have been the subject of a Deceptive Trade Practices Act or any
unfair business administrative hearing or court suit and that such officers have not been found to
be guilty of such practices in such proceedings.
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FELONY CRMLNAL CONVICTIONS
Contractor, to the best knowledge of the officer signing on Contractor's behalf, represents and
warrants that Contractor has not and Contractor's employees have not been convicted of a felony
criminal offense, or that, if such a conviction has occurred, Contractor has fully advised
Comptroller as to the facts and circumstances surrounding the conviction.
YEAR 2000
In the event that Contractor is unable to materially perform Contractor's obligations under this
Agreement due to the failure of Contractor's systems to accurately process date/time data from,
into, and between the twentieth and twenty first centuries, and such failure to perform is in no
way due to Subscribers' and/or Comptroller's act or omission, and Contractor is unable to
remedy such nonperformance within sixty (60) days of notice from Comptroller of such
nonperformance, then Comptrollermay terminate this Agreement. Right of termination does not
limit any other rights to remedy under this Agreement and under law or equity.
In the event that Comptroller and/or Subscriber is unable to materially perform Comptroller's
ariftr Subscriber's obligations under this Agreement due to the failure of Comptroller's and/or
Subscriber's systems to accurately process date/time data from, into, and between the twentieth
and twenty first centuries, and such failure to perform is in no way due to Contractor's act or
omission, and Comptroller and/or Subscriber is unable to remedy such nonperformance within
sixty (60) days of notice from Contractor of such nonperformance, then Contractor may
terminate this Agreement. Right of termination does not limit any other rights to remedy under
this Agreement and under law or equity.
PROHIBITED PAYMENTS
If at any time during the term of this Agreement, the State is prohibited from issuing a warrant to
Contracttk under Section 403.055, Government Code, the following sentence shall apply to this
Agreement:
All of Contractor's payments under this Agreement shall be applied toward the debt or
delinquent taxes that Contractor owes the State until debt or delinquent taxes are paid in full.
Contractor shall comply with Comptroller's rules adopted under Section 403.055, Government
Code.
FALSE STATEMENTS; BREACH OF REPRESENTATIONS, ETC.
By signature to this Agreement, the parties make all representations, warranties, guarantee,
certifications and affirmations included in this Agreement. If either party signs this Agreement
with a false statement or it is subsequently determined that any of the representations, warranties,
guarantees, certifications or affirmations included in this Agreement are not true, the offending
pam, will be in default under this Agreement and the non -offending parry may remedy such
default by terminating or voiding this Agreement, which remedy shall be the non -offending
parry's sole and exclusive remedy with respect thereto.
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FORCE bIATEURE
Except as otherwise provided, neither Comptroller: nor Subscriber nor Contractor shall be liable
to the other for any delay in, or failure of performance, of any requirement included in the '
Agreement caused by force majeure. The existence of such causes of delay or failure shall
extend the period of performance in the exercise of reasonable diligence until after the causes of
delay or failure have been removed. Force majeure is defined as those causes generally
recognized under Texas law as constituting impossible conditions. Each party must inform the
other in writing with proof of receipt within three business days of the existence of such force
majeure or otherwise waive this right as a defense. This section does not apply to Contractor's t
delay in performance or failure to perform due to Year 2000 issues. .
CONTRACTOR:
AMERICAN EXPRESS TRAVEL
RELATED SER CES COMPA\'Y, INC.
By:
tep rn Jen
President,, am, &: U.S.
Establishment Services
STATE OF TEXAS
COMPTROL�ER OF PUBLIC ACCOUNTS
Name: Billy C. Hamilton
Title: Deputy Comptroller
Effective Date: J 2000
Discount Rate: 2.15 %
IS