AGREEMENT FOR
AMERICAN EXPRESS® CARD ACCEPTANCE
BY AND BETWEEN
NEW YORK STATE
OFFICE OF GENERAL SERVICES
AND
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
CONTRACT NUMBER PS69501
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STATE OF NEW YORK
AGREEMENT FOR
AMERICAN EXPRESS® CARD ACCEPTANCE
WITH
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC
.
CONTRACT # PS69501
THIS AGREEMENT
(the
Agreement
or
Contract
) is made this
_____
day of
______________, 2021 by and between the People of the State of New York, acting
by and through the Commissioner of General Services, whose office is on the
36th Floor, Corning Tower Building, the Governor Nelson A. Rockefeller Empire
State Plaza, Albany, New York 12242 (herein referred to as
OGS or State
), and
American Express Travel Related Services Company, Inc., with offices at 200
Vesey Street, New York, New York 10285 (
American Express
,
our
,
us
or
we
).
Hereinafter, the State and American Express may be collectively referred to as
the “parties” or individually as a “party.”
W I T N E S S E T H
:
WHEREAS
, OGS is statutorily authorized to enter into centralized procurement
contracts for services and technology acquisitions for use by New York State
agencies and departments, public authorities, political subdivisions and others
authorized by statute to utilize its centralized contracts, (hereinafter
Authorized
Users
), and
WHEREAS
, OGS is the designated Statewide Electronic Value Transfer
Administrator (
EVTA
) under State Finance Law § 4-a. The EVTA is responsible
for establishing, facilitating and overseeing statewide policies for the acceptance
and collection of payments including Credit/Charge Cards, Debit Cards,
electronic funds transfers, and the effective and efficient implementation,
operation and administration of such payment programs; and
WHEREAS
, OGS has identified a need to provide Authorized Users with the
ability to accept the American Express® Card, and to have American Express
authorize, capture, settle and report American Express Transactions, and
16th
November
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WHEREAS
, American Express is a sole-source provider of American Express
authorization, capture, settlement and reporting services, and is acting in such
capacity in executing and performing this Agreement, and
WHEREAS
, American Express has submitted pricing information to the State for
American Express® Card acceptance, and the State has determined that such
pricing is reasonable and acceptable in order to fulfill the State’s needs and
objectives, and
WHEREAS
, American Express is ready, willing and able to enter into this
Agreement to provide the services set forth herein and American Express agrees
to the specifications and terms set forth in this Agreement, and
NOW THEREFORE
, in consideration of the mutual covenants, terms, and
conditions set forth herein, the parties do hereby agree as follows:
1.
SCOPE
This Agreement sets forth the terms and conditions governing the provision of
services by Contractor for the Authorization, processing, Settlement, and
reporting of American Express® Card Transactions and other ancillary services
to Authorized Users. Except as otherwise set forth in this Agreement, the terms
used in this document shall have the meanings set forth in Appendix B. Except
as specifically provided herein, amendments or modifications to the terms and
conditions set forth herein may only be made with mutual written agreement of
the Parties and with the approval of the New York State Attorney General and
the State Comptroller.
The Agreement governs the acceptance of American Express® Cards in the
United States by Authorized Users. The Agreement covers the Authorized User
alone
. The Authorized User shall distribute all notices, statements,
amendments, and other communications related to this Agreement that it
receives from American Express to its Establishments accepting the Card
hereunder. The Authorized User must not obtain Authorizations, submit
Charges or Credits, or receive payments on behalf of any other party, except as
otherwise expressly permitted in the Merchant Regulations.
The Authorized User must accept the Card as payment for all goods and services
sold at all of its Establishments, except as otherwise expressly specified in the
Merchant Regulations. Each Authorized User is responsible and liable for the
performance by its Establishments of all provisions of and obligations in this
Agreement. For the avoidance of doubt, OGS is not responsible or liable for the
performance by Authorized Users of the provisions of or obligations in this
Agreement.
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As the payment processing industry changes and evolves over time, the State
reserves the right to allow additional products or services within the general
scope of this Contract award to be added to the Contract(s), with the agreement
of the Contractor and upon approval by OGS and Contractor, via Contract
amendment or Appendix C update, as applicable.
Use of this NYS OGS centralized contract with
American Express Travel Related
Services Company, Inc.
is required for Authorized Users to process American
Express® Card Transactions. The awarded contractors on centralized contract
for
Payment
Processing
Services
(Award
23111)
https://online.ogs.ny.gov/purchase/snt/awardnotes/7900823111can.htm
shall provide for processing, Settlement, and reporting of American Express®
Card Transactions and other ancillary services to Authorized Users of American
Express® Cards.
Contractor acknowledges that it does not classify an Authorized User as a
Payment Aggregator on Contractor’s Network. If an Authorized User wishes to
provide Payment Aggregator services and has obtained the necessary approvals
to do so, and Contractor, in its sole discretion, approves and classifies such
Authorized User as a Payment Aggregator, then Chapter 13, “Payment
Aggregator,” of the Merchant Regulations shall apply to such Authorized User.
Otherwise, Chapter 13 does not apply to an Authorized User, as set forth in
Appendix C, section 2.
2.
EXCLUSIONS FROM SCOPE
No hardware, supplies or consulting services are available for purchase under
this Agreement. No development or customization work will be provided under
any order. Furthermore, the Parties agree that no Systems or projects shall be
provided under this Agreement. The Parties expressly agree that the Agreement
shall not be amended to add hardware, any other consulting services or Systems
as an offering. The Parties also agree that no public works or building services
work can be provided by the Contractor under this Agreement.
3.
DEFINITIONS
Capitalized terms used but not otherwise defined herein have the meanings
ascribed to them in the Merchant Regulations. Some definitions that appear in
the Merchant Regulations are amended in this section 3. of this Agreement.
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American Express Card
or
Card
mean (i) any card, account access device, or
payment device or service in each case bearing our or our Affiliates’ Marks and
issued by an Issuer or (ii) a Card Number.
American Express Network
or
Network
- Network of merchants that accept
Cards and the operational, service delivery, systems, and marketing
infrastructure that supports this Network and the American Express Brand.
Automated Clearing House (ACH) –
the electronic money transfer system of the
Federal Reserve System.
Authorized User(s)
– a New York State agency, department, public authority,
political subdivision or other entity authorized by statute to utilize OGS
centralized service contracts. This definition shall supersede and replace the
definition set forth in Appendix B, Section 2.a., Definitions. Any and all
references in the Merchant Regulations to Affiliate(s), as it applies to Authorized
User, are hereby deleted and replaced with references to Authorized User.
Bank
– a bank within the United States that participates in ACH.
Bank Account
- an account that an Authorized User holds at a bank or other
financial institution.
Cardmember
- an individual or Entity (i) that has entered into an agreement
establishing a Card account with an Issuer or (ii) whose name appears on the
Card. (Cardmember is sometimes referred to as “Card Member” in our materials.)
Charge
- a payment or purchase made on the Card.
Chargeback
when used as a verb, means (i) our reimbursement from you for
the amount of a Charge subject to such right or (ii) our reversal of a Charge for
which we have not paid you; when used as a noun, means the amount of a
Charge subject to reimbursement from you or reversal. Chargeback is sometimes
called “full recourse” or “Full Recourse” in our materials)
Convenience Fee
– a payment mechanism by which, at the direction of an
Authorized User, a service provider (e.g., Internet or Interactive Voice Response
service provider) is reimbursed by device users for costs associated with
providing such services. The amount of the Convenience Fee and the method by
which it may be collected shall be set forth in Authorized User’s Implementation
Plan.
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Corporate Purchasing Card
(
CPC
) - Corporate Purchasing Card (CPC) program
assists with procurement costs and enables streamlining of the procurement
process from sourcing and buying, to billing payment and reconciliation.
Credit/Charge Cards –
the four nationally recognized branded cards:
MasterCard, Visa, Discover and American Express.
Credit
- the amount of the Charge that you refund to Cardmembers for
purchases or payments made on the Card.
Debit Card
- a Card that accesses a demand deposit, current, savings, or similar
account. A Transaction is settled from the accessed account. A Debit Card is
not a Prepaid Card.
Disputed Charge
- a Charge about which a claim, complaint, or question has
been brought.
Electronic Pay
– the pay program where funds are sent from Contractor
electronically via the ACH.
Electronic Value Transfer Administrator (EVTA
or
OGS) -
the New York State
Office of General Services.
Entity
- a corporation, partnership, sole proprietorship, trust, association, or
any other legally recognized entity or organization.
Financial Services Processor (FSP)
- a processor of Credit/Charge Cards. Also
referred to as a “Processor” in Contractor’s materials.
Program Plan Application Form
– a document that is to be completed by every
State Agency for the purpose of receiving approval from the EVTA and Division
of the Budget for their EVTA agency plan. Each State Agency must receive sign
off from EVTA prior to submitting this form to the Contractor. The State reserves
the right to modify this form, at its discretion, throughout the term of the
Agreement without prejudice to Contractor and without the approval of the
Department of Law or the Office of the State Comptroller. The Program Plan
Application Form is attached as Appendix F of this Agreement.
Work Order Form
– a document issued by an Authorized User which provides
all the EVT technical project details, project costs and any unique administrative
terms and conditions required by an Authorized User. Each Work Order Form
that incorporates unique terms or conditions not provided for in the Agreement
shall be reviewed and approved in writing by Contractor prior to its
commencement of any services described in this Agreement. For a State Agency
Authorized User, the EVTA shall review and approve the form in writing prior to
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commencement of any services described in this Agreement. The Work Order
Form is attached as Appendix G. The State reserves the right to modify this form,
at its discretion, throughout the term of the Agreement without prejudice to
Contractor and without the approval of the Department of Law or the Office of
the State Comptroller.
Full Recourse
– Refer to the definition of “Chargeback” in the Merchant
Regulations.
Marks
- names, logos, service marks, trademarks, trade names, taglines, or
other proprietary designs or designations.
Merchant Number
- a unique number American Express assigns to Authorized
Users and their Establishment(s).
Merchant Regulations
- the American Express Merchant Regulations – U.S.,
which are available at
www.americanexpress
.com/merchantpolicy and can be
accessed by entering your online Merchant Account user ID and password. The
Merchant Regulations are attached as Appendix E of this Agreement.
Other Payment Products
- any charge, credit, debit, stored value, prepaid, or
smart cards, account access devices, or other payment cards, services, or
products other than the Card.
Plural Interface Processing (PIP)
–
the multiple direct routing process (via an
American Express terminal or software) that routes bank card transactions to
FSPs and American Express transactions directly to American Express for both
authorizations and submission for settlement.
Reverse PIP
– the multiple direct routing process (via a non-American Express
terminal or software) that routes bank card transactions to FSPs and American
Express transactions directly to American Express for both authorizations and
submission for settlement.
Split Dial –
the routing process (via a terminal or software) that does not support
PIP technology may still have the capability of sending authorization requests
directly to American Express, but the settlement submission batch is routed
through an FSP, generally meaning that the industry-specific software cannot be
accommodated.
Subcontractor
or
subcontractor -
means any individual or other legal entity,
(including but not limited to sole proprietor, partnership, limited liability
company, firm or corporation) who has entered into a contract with Contractor,
express or implied, for the performance of a portion of this Agreement, and shall
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not mean any third party vendor with whom Contractor has entered into an
agreement to receive goods and/or services which Contractor utilizes in its
regular course of business. This definition shall supersede and replace the
definition set forth in Appendix B, Section 2.ii., Definitions.
Telephone Order
– an order that occurs when Card payment information is
taken over the telephone.
The definition in the Merchant Regulations
you
and
your
is hereby deleted in
its entirety and replaced with the following:
You
and
your
(sometimes called the “Merchant”, “Service Establishment”, or
“SE” in American Express’s materials) mean the Authorized Users.
4.
ORDER OF PRECEDENCE
The following documents shall be deemed part of this Agreement and the Parties
agree to perform this Agreement in accordance with all the conditions, covenants
and representations set forth in these documents:
a.
Appendix A, Standard Clauses for New York State Contracts;
b.
This Agreement (that is, the material preceding the Parties’ signatures),
exclusive of all other Appendices;
c.
Appendix B, General Specifications;
d.
Appendix C, Other Important Provisions for Card Acceptance and
Exceptions to the Merchant Regulations;
e.
Appendix E, Merchant Regulations;
f.
Appendix F: Program Plan Application Form;
g.
Appendix G: Work Order Form;
h.
Appendix D, Federal Funding Agency Mandatory Terms and
Conditions
i.
Appendix H, Procedures for Updating Agreement Pricing and/or Product
Listings.
j.
Appendix I, Contractor’s Insurance Requirements.
In the event of any discrepancy, disagreement or ambiguity among the above
listed documents, they shall be given preference in the order listed above to
interpret and to resolve such discrepancy, disagreement or ambiguity.
5.
APPENDIX A
Appendix A, Standard Clauses for New York State Contracts, attached hereto, is
hereby expressly made a part of this Agreement as fully as if set forth at length
herein.
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6.
CLAUSES RESERVED IN APPENDIX B
The Parties agree that the following clauses from Appendix B are not applicable
to this Agreement:
3. International Bidding
4. Bid Opening
5. Late Bids
7. Prevailing Wage Rates – Public Works and Building Services Contracts10.
Product References
11. Remanufactured, Recycled, Recyclable, or Recovered Materials
12. Products Manufactured in Public Institutions
13. Pricing
14. Site Inspections
15. Purchasing Card
16. Bid Evaluation
17. Tie Bids
18. Quantity Changes Prior to Award
19. Timeframe for Offers
27. Scope Changes
28. Estimated/Specific Quantity Contracts
31. Product Delivery
32. Weekend and Holiday Deliveries
33. Shipping/Receipt of Product
35. Product Substitution
36. Rejected Product
37. Installation
38. Repaired or Replaced Products, Parts, or Components
50. Toxic Substances
54. Warranties, sub-sections c., d., e., and i.
64. Ownership/Title to Project Deliverables
7.
MERCHANT REGULATIONS
The Merchant Regulations set forth the policies and procedures governing
acceptance of the Card. The Authorized User shall ensure that its personnel
interacting with customers are fully familiar with the Merchant Regulations. The
Merchant Regulations are a part of, and are hereby incorporated by reference
into, the Agreement. The Authorized User agrees to be bound by and accept all
provisions in the Merchant Regulations (as changed from time to time (i) as
required by Applicable Law; and (2) to the extent such provisions do not conflict
with the provisions set forth in the Agreement documents that are given
preference to the Merchant Regulations in the Order of Precedence above) as if
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fully set out herein and as a condition of the Authorized User’s agreement to
accept the Card. American Express has the right to make changes to the
Merchant Regulations in scheduled changes and at any time in unscheduled
changes as set forth in section 10 below. The Merchant Regulations and releases
of scheduled changes therein are provided in electronic form, existing at the
website specified below in the definition of “Merchant Regulations” or its
successor website. We will provide you a paper copy of or a CD-ROM containing
the Merchant Regulations or releases of scheduled changes therein upon your
request. To order a copy, please call our Merchant Services representatives
(telephone: 1-800-528-5200).
The Parties recognize that the numbering system used in the Merchant
Regulations may change. For avoidance of doubt, the Parties agree that the
narrative used to describe a section of the Merchant Regulations controls over
the number reference. For example, in the phrase “Chapter 14, Merchant Fees”,
the controlling element is the narrative “Merchant Fees.”
8.
TRANSITION PERIOD/AUTHORIZED USERS.
In order to ensure continued Card acceptance of existing Authorized Users who
are accepting the Card under the prior agreement between the State Of New York
- Office of General Services Procurement Services Group and American Express
Travel Related Services Company, Inc., for Statewide Electronic Value Transfer
Services (Group No. 79008) - Contract No. PS65669 (the
Prior CAA
), during the
period of time until the Authorized User executes a new Work Order Form under
this Agreement (Contract No. PS69501) (such time period herein called
the
Transition Period
) the State, having the authority, authorizes its Authorized
Users to continue to accept the Card under the Prior CAA (EVTA forms 1 and 2)
during the Transition Period until the Authorized Users complete the OGS
approved Work Order Form under this Agreement. It being understood by the
parties, the Transition Period shall be no longer than a period of twelve (12)
consecutive months from the effective date of this Agreement.
9.
CONTRACT TERM
This Agreement shall commence upon New York State Office of the State
Comptroller (
OSC
) approval and will be in effect for a term of five (5) years, unless
sooner terminated as herein specified. Upon mutual agreement of both parties,
this Agreement may be extended for up to one (1) additional five (5) year term.
10.
CONTRACT AMENDMENTS
Except as otherwise provided in this Agreement or required pursuant to
Applicable Law, this Agreement may not be changed, altered or modified except
by an instrument in writing executed and approved by both Parties, subject to
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the approval of the New York State Office of the Attorney General and the New
York State Office of the State Comptroller, provided that Contractor may change
the Merchant Regulations pursuant to the following provisions. Authorized User
agrees to accept all changes (and further to abide by the changed provisions in
the Merchant Regulations) as a condition of its agreement to accept the Card to
the extent such provisions do not conflict with the provisions set forth in the
documents that are given preference to the Merchant Regulations in section 4
above.
(1)
Scheduled Changes. The Merchant Regulations are published twice each
year, in April and October. Contractor has the right to, and hereby notifies
you that Contractor may, change the provisions of the Merchant
Regulations in scheduled releases (sometimes called “Notification of
Changes” in Contractor’s materials) as follows:
• a release of scheduled changes, to be published every April, which
changes shall take effect in the following October (or in a later)
edition of the Merchant Regulations or during the period between
two editions of the Merchant Regulations, and
• a release of scheduled changes, to be published every October,
which changes shall take effect in the following April (or in a later)
edition of the Merchant Regulations or during the period between
two editions of the Merchant Regulations.
Where a change is to take effect during the period between two editions of
the Merchant Regulations, Contractor shall also include the change in the
edition of the Merchant Regulations covering the period during which the
change shall take effect, noting the effective date of the change therein.
(2)
Unscheduled Changes. Contractor also has the right to, and hereby
notifies Authorized User that Contractor may, change the provisions of the
Merchant Regulations in separate unscheduled releases, which generally
shall take effect ten days after notice to Authorized User (unless another
effective date is specified in the notice).
Contractor shall provide an electronic copy of each scheduled and
unscheduled change to OGS via electronic e-mail within thirty (30) days of
the applicable release. Any unscheduled changes which are mandated by
law shall take effect as set forth in subsection (2) above of this section 10.
Except for unscheduled changes which are mandated by law, OGS agrees
to notify Contractor if OGS, or an Authorized User, objects to any of the
applicable changes within 60 days of OGS’s receipt of the applicable
release, or such other time as the Parties may agree to in writing. If the
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Parties cannot reach an agreement with respect to any such changes prior
to the effective date of such changes, or some other time mutually agreed
upon by the Parties, then: (i) the Authorized User may terminate its Work
Order Form; or (ii) OGS may terminate the Agreement. Any such
termination shall take effect as of the effective date of the applicable
changes. In the event that OGS, or Authorized User, does not object to the
changes, or if OGS or Authorized User raises an objection, but does not
exercise its termination rights under this section 10, then such changes
shall apply to this Agreement as of the effective date of such change.
11.
AMEX NETWORK
The State and Contractor agree that the American Express Network, as defined
in the April 2021 edition of the Merchant Regulations, with the exception of the
Merchant Interactive tool (
MI
), is neither Licensed Software nor a Licensed
Product, but that it is a Product. Accordingly, Contractor shall have no obligation
to meet the requirements of sections 60 through 66 of Appendix B of this
Agreement with respect to the American Express Network (with the exception of
the Merchant Interactive tool). Contractor’s MI tool allows for reconciliation of
payment, facilitates the resolution of Inquiries and Disputed Charges and
provides Authorized Users reporting or, more generally, access to an Authorized
User’s Account online at www.americanexpress.com/merchant.
12.
ACCEPTING THE CARD
a
. Acceptance. Authorized Users must accept the Card as payment for all goods
and services sold at all of an Authorized User’s Establishments, except as
otherwise expressly specified in the Merchant Regulations. Authorized User(s)
agree that the provisions of Chapter 3 (Card Acceptance) of the Merchant
Regulations are reasonable and necessary to protect the Cardmember’s choice
of which Card to use. Authorized User is responsible and jointly and severally
liable for the performance by Authorized User’s Establishments of all provisions
of the Agreement and all obligations of Authorized User’s Establishments under
the Agreement.
b
. Transaction Processing and Payments. Our Card acceptance, processing, and
payment requirements are set forth in the Merchant Regulations. Some
requirements are summarized here for ease of reference, but do not supersede
the provisions in the Merchant Regulations.
i.
Format. You must create a Charge Record for every Charge and a Credit
Record for every Credit that complies with our Technical Specifications, as
described in the Merchant Regulations. If the Cardmember wants to use
different Cards for payment of a purchase, you may create a separate Charge
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Record for each Card used. However, if the Cardmember wants to use a single
Card for payment of a purchase, you shall not divide the purchase into more
than one Charge nor shall you create more than one Charge Record unless
the purchase qualifies for a Delayed Delivery Charge.
ii
. Authorization. For every Charge, you must obtain from and submit to us
an Authorization Approval code. An Authorization Approval does not
guarantee that (i) the person making the Charge is the Cardmember, (ii) the
Charge is in fact valid or bona fide, (iii) you will be paid for the Charge, or (iv)
you will not be subject to Chargeback.
iii
. Submitting Charges and Credits. Authorized User and its Establishments
must submit Charges and Credits only in U.S. dollars. You must not issue a
Credit when there is no corresponding Charge. You must issue Credits to the
Card used to make the original purchase, except as otherwise expressly
specified in the Merchant Regulations.
iv
. Payment for Charges. We will pay you according to your payment plan in
U.S. dollars for the face amount of Charges submitted from your
Establishments less all applicable deductions, rejections, and withholdings,
which include: (i) the Discount, (ii) any amounts you owe us or our Affiliates,
(iii) any amounts for which we have Chargebacks, and (iv) any amounts for
which you have submitted Credits. Your initial Discount and payment plan
are indicated on Appendix C, attached hereto and made a part hereof. In
addition to your Discount the only other fee we may charge you are
processing/gateway fees, as described in Section 13 below.
v.
Chargeback. We have Chargeback rights, as described in the Merchant
Regulations. We may Chargeback Authorized Users and their Establishments
according to the process described in Section 14 below. Our failure to
demand payment does not waive our Chargeback rights.
vi
. Protecting Cardmember Information. You must protect Cardmember
Information, as described in the Merchant Regulations. You have additional
obligations based on your Transaction volume, including providing to us
documentation validating your compliance with the PCI DSS.
13.
AGREEMENT COSTS
All costs associated with this Agreement are outlined in Appendix C (
Other
Important
Provisions
for
Card
Acceptance/Exceptions
to
the
Merchant
Regulations
). For the avoidance of doubt, except for Gateway Fees, any fees set
forth in the Merchant Regulations, including, but not limited to, any fees set
forth in Chapter 14, Merchant Fees, of the Merchant Regulations, that are not
also set forth in Appendix C shall not apply. Any adjustment to the fees set forth
in Appendix C shall be submitted to OGS by Contractor pursuant to Appendix
H.
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A.
Discount Rate – The Discount Rate is calculated as a percentage of the
Transaction and is set forth in Appendix C. Effective every April 1st
(beginning after the first full calendar year of this Agreement) American
Express may seek to adjust the Discount Rate. Any request for an increase
in the Discount Rate must be provided to the State, with sixty (60) days
advance written notice. American Express must provide the appropriate
supporting written documentation for the rate increase, as mandated by
the Office of the State Comptroller. The effective date of such change shall
coincide with the beginning of the next monthly invoicing cycle following
State Comptroller approval. However, if the State determines a change in
the discount rate to be unacceptable, the State shall notify Contractor and
the parties will negotiate in good faith to attempt to arrive at mutually
agreeable terms. If the parties are unable to reach mutually agreeable
terms, then the State shall have the option of terminating this Agreement
consistent with Section 43 of Appendix B; or (ii) American Express can
withdraw such request for an increase in the Discount Rate.
The Discount Rate tables set forth in Appendix C are the Discount Rate
tables for merchants classified in the state government industry category
(industry code 541) as of the Effective Date. The State acknowledges that
American Express’s discount rate tables and pricing policies may be
modified by American Express from time to time. Any modification to the
State’s Discount shall follow the procedures outlined in the Agreement in
Appendix H.
B. Gateway Fees – If an Authorized User or its Covered Parties route
Authorization requests to Contractor through the Visa or MasterCard processing
gateways, Visa and MasterCard charge Contractor fees for these Authorizations.
Contractor will pass their fees, which may vary depending on Authorization
volume and other factors, on to Authorized User for all Authorized User’s
Authorizations that are routed through their gateways in a given month. For
clarity, any Gateway Fees charged to the Authorized User must be passed
through to the Authorized User at cost only (i.e., the amount that Visa or
MasterCard charges Contractor for said Gateway), with no markup added by
Contractor.
14.
CONTRACTOR PAYMENTS
Contractor will pay the Authorized User in United States Dollars for the face
amount of Charges that each Authorized User submits. After the close of each
month, Contractor shall invoice each Authorized User monthly for the following
applicable deductions, rejections and withholdings from the previous month: (i)
the aggregate Discount; (ii) any amounts owed by an Authorized User to
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Contractor for Gateway Fees; and (iii) any Credits the Authorized User submits.
With respect to Chargebacks, Chargebacks will be deducted from an Authorized
User’s Transaction amount with Contractor for the current month in which the
Chargeback was made. If Contractor is unable to deduct the Chargeback from
the current Transaction amount, then the Chargeback will be sent to
Contractor’s debit balance team and the debit balance team will contact the
applicable Authorized User payment. In order to be eligible for this billing
process, each Authorized User must: (1) submit all Charges to Contractor
electronically; and (2) receive all payments electronically via ACH. Authorized
User agrees it will not receive payment: (1) for a Charge using a Merchant
Number other than its own Merchant Number(s); and (2) on behalf of an entity
other than itself or another Authorized User.
15.
SETTLEMENT PAYMENT METHOD
Under Electronic Pay, funds are sent electronically via ACH. Authorized User
must designate a Bank Account. Authorized User must also provide to American
Express the required information about Authorized User’s Bank Account and
Authorized User’s Bank and Authorized User must notify their Bank that
American Express may have access to the Bank Account to make payments.
Authorized User must immediately notify Contractor of any changes to
Authorized User’s Bank, Bank Account or ACH information. American Express
will initiate payment to Authorized User’s Bank Account via ACH within one (1)
day and in accordance with the following table and column definitions. As used
herein,
One-day payment plan
means that we initiate payment one (1) day after
our cutoff time for receiving and processing Charges.
The following table illustrates the One-day payment plan.
Receipt Date (Day 0)
Settlement Day (Day 1)
Sunday
Monday
Monday
Tuesday
Tuesday
Wednesday
Wednesday
Thursday
Thursday
Friday
Friday
Monday*
Saturday
Monday*
*ACH network does not operate on Saturdays, Sundays and Federal Reserve
holidays.
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Contractor will not be responsible for any obligations, damages or liabilities over
and above the amount of the applicable debit, credit or adjustment to Authorized
User’s Bank Account in the event that any such debit, credit or adjustment is
not honored by Authorized User’s Bank or is improperly applied to Authorized
User’s Account by the Bank.
16.
AUTHORIZED USER PAYMENTS
All State Agency Authorized User payments will be made to Contractor in
conformance with Article XI-A of the New York State Finance Law.
A non-State Agency Authorized User payment will be made to Contractor within
thirty (30) calendar days of receipt of a complete and accurate invoice (excluding
legal holidays recognized by the State) subject to applicable law under which the
Authorized User operates. The non-State Agency Authorized User will provide
the Contractor with documentation that supports payment terms exceeding
thirty (30) calendar days in its Work Order Form or other writing provided to
Contractor.
17.
CARD SERVICES
An Authorized User shall procure the services of an FSP for the data capture and
routing for authorization of American Express related Transactions. Contractor
agrees that it will use commercially reasonable efforts to approve and to accept
Transactions through the FSP designated by Authorized User. If Contractor does
not approve the Authorized User’s designated FSP, Contractor is not obligated to
sign or accept that Authorized User’s Work Order Form. Because such FSPs are
not authorized to handle either the funds or the reports associated with
American Express® Card Transactions, American Express shall be responsible
for the settlement of funds associated with these Transactions into the Bank
Account designated by the Authorized User, and for making the related American
Express® Card Transaction Data available to the Authorized User. Contractor
shall not be responsible for any errors, omissions, delays or expenses caused by
the FSP. Authorized User will provide Contractor with all relevant information
requested about the FSP and will notify Contractor promptly in writing if the FSP
is changed.
18.
TRANSMITTING DIRECTLY TO AMERICAN EXPRESS
This Agreement permits an Authorized User to transmit American Express®
Card Transactions directly to American Express. If an Authorized User chooses
to transmit both Authorization requests and Batch submissions to American
Express directly, the Authorized User must utilize PIP or Reverse PIP. If an
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Authorized User chooses to transmit only Authorization requests to American
Express directly, the Authorized User must use Split Dial.
19.
FULL RECOURSE/CHARGEBACK
In addition to any Full Recourse (also called Chargeback) rights Contractor has
in the Merchant Regulations, Contractor shall have Full Recourse if Authorized
User does not comply with the terms of this Agreement with respect to a
Charge(s), even if Contractor had notice when it paid Authorized User for the
Charge(s) that Authorized User did not so comply and even if Authorized User
obtained Authorization for the Charge(s) in question. In the event that a dispute
involves a Card Not Present Charge that is an Internet Electronic Delivery
Transaction, Contractor shall exercise its right of Full Recourse for the full
amount of the Charge immediately, without first sending Authorized User an
inquiry.
Neither Authorized User nor Contractor shall be responsible hereunder for
damages arising from delays or problems caused by any telecommunications
carrier or banking system; provided, however, that the foregoing shall have no
effect upon Contractor’s rights to Full Recourse pursuant to this Agreement.
20.
CONVENIENCE FEES
This section shall supersede section 12.11 of the Merchant Regulations titled
“Government/Utilities/ Education.” The Convenience Fee shall be applied at the
direction of the Authorized User. When Convenience Fees are applied, the
Authorized User agrees to clearly disclose to Cardmembers: (1) the amount of
such Convenience Fee; (2) that the Authorized User is charging the Convenience
Fee; and, (3) that the Convenience Fee charged to the Cardmember is an
assessment to cover the Authorized User’s administrative costs and not as an
assessment to cover the Authorized User’s cost of accepting the Card. Authorized
Users must not impose a higher convenience fee, whether in the form of a flat
fee or as a percentage of the final Transaction amount, on Charges than it
imposes on Other Payment Products, except for electronic funds transfers, cash,
and checks. American Express views discrimination against Cardmembers as a
breach of the Agreement. For the Authorized User, the amount of the
Convenience Fee and the method by which it may be collected shall be submitted
for approval by American Express prior to being set forth in the Authorized User’s
Work Order Form.
When Convenience Fees are applied and are paid by a Cardmember directly to
an Authorized User, then one (1) Charge (constituting both the amount of the
payment and the amount of the Convenience Fee) must be submitted to
American Express. The Discount will be assessed on this Charge.
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When Convenience Fees are applied and are paid by a Cardmember to a party
who is not the Authorized User, then two (2) Charges (one (1) constituting the
amount of the payment, and one (1) constituting the amount of the Convenience
Fee) must be submitted to American Express. The Discount will be assessed on
both Charges. In such cases, the Authorized User must instruct American
Express as to the payment of the Convenience Fee on the Authorized User’s Work
Order Form. Authorized User remains responsible for payment of the Discount.
21.
PROCEDURES FOR UPDATING AGREEMENT PRICING OR PRODUCT
LISTINGS
Appendix H of this Agreement contains procedures related to changes for the
addition of services under this Agreement. For each of these Agreement changes,
the Contractor must complete the Contract Update Form, which is attached in
Appendix H. The State reserves the right to modify Appendix H, at its discretion
without the approval of the Department of Law or the Office of the State
Comptroller, throughout the term of the Agreement without prejudice to
Contractor. If Appendix H is modified, the State will provide written notice to
Contractor of such modification to Appendix H.
22.
PROTECTIVE ACTIONS
a.
Suspension. We may suspend Card acceptance by an Authorized User, upon
written notice to the Authorized User, if we determine, in our sole discretion,
that: (i) such Authorized User will not be able to perform any of its obligations
under the Agreement, or (ii) we have, or will have, financial exposure or risk with
respect to such Authorized User under the Agreement. Any such suspended
Authorized User shall remain liable for all amounts due to us under the
Agreement prior to the effective date of any such suspension or arising from
Charges submitted prior to the effective date of any such suspension.
b.
Other Protections. We may take other reasonable actions to protect our rights
and the rights of any of our Affiliates, including changing the speed or method
of payment for Charges, exercising Chargeback under any of our Chargeback
programs, offsetting any amounts due to Authorized User under the Agreement
against amounts that Authorized User owe us or our Affiliates under the
Agreement or any Other Agreement.
c.
Providing Information. Authorized User must provide to us promptly, upon
request, information about it and its Establishments’ finances, creditworthiness,
and operations, including the most recent certified financial statements.
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23.
GENERAL AMEX RESPONSIBILITIES
Authorized User that is a State agency: Upon receipt of an executed and approved
Program Plan Application Form from an Authorized User, the Contractor can
begin to design an American Express® Card acceptance program under this
Agreement. Upon receipt of a completed Work Order Form, the Contractor may
begin to provide reimbursable services to that Authorized User. Copies of these
forms are included in Appendix F and Appendix G.
Authorized User that is not a State agency: The Parties acknowledge that an
Authorized User that is not a State Agency is required to submit its completed
Program Plan Application Form to the EVTA, but that the EVTA only
acknowledges receipt and does not have an approval role. Upon receipt of an
executed Program Plan Application Form that denotes “receipt” by the EVTA, the
Contractor can begin to design an American Express® Card acceptance program
under this Agreement. Upon receipt of a completed Work Order Form, the
Contractor may begin to provide reimbursable services to that Authorized User.
Copies of these forms are included in Appendix F and Appendix G.
24.
CONNECTIVITY
Contractor shall be responsible for maintaining only its interfaces with an FSP.
Contractor shall not be responsible for maintaining the FSP’s interfaces in order
to support any services provided for in this Agreement.
The Contractor system for all critical communication links and routing the Credit
Authorization System (CAS) features full redundancy. CAS reliability, excluding
delays caused by external telecom providers and/or hardware utilized outside of
the American Express Network, exceeds 99% uptime. Contractor minimizes
system "down time", with "down time" defined as a period of time during the
normal Authorized User’s business hours where Contractor's system is
unavailable to provide the services pursuant to this Agreement.
25.
ASSIGNING MERCHANT NUMBERS
In addition to section 2.3 of the Merchant Regulations, Contractor will provide,
at the Authorized User’s request, multiple Merchant Numbers to support distinct
reporting and reconciliation of Authorized User’s payment programs (e.g.,
revenue sources) and payment channels (e.g., Point of Sale, Internet) within
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payment programs. In all cases, however, a separate Merchant Number will be
required for Internet transactions.
26.
REPORTS
Contractor agrees to provide the following types of reports as listed below.
Contractor’s MI tool is available to Authorized Users and can be found at: at
www.americanexpress.com/merchant
.
A. Each month Contractor shall provide each Authorized User with a Merchant
Financial Activity Statement. Each Merchant Financial Activity Statement shall
include transaction data sufficient to reconcile, monitor and audit Settlements
made to the Authorized User by Contractor during the previous month under
this Agreement including the aggregate number of: (i) Submissions; (ii)
Transactions; (iii) Credits issued; (iv) Discount amounts; (v) Gateway Fees; and
(vi) Settlement amounts. Should an Authorized User desire to share its
transaction data with a third-party other than OGS or the EVTA, this will be
noted on the Work Order Form.
B. Contractor shall provide semi-annual summary reports to OGS and the EVTA
summarizing the aggregate number of: (i) Transactions; (ii) Submissions; (iii)
Settlements; (iv) Discount owed; (v) Gateway Fees; (vi) Chargebacks; and (vii)
Transactions Contractor determines to be fraudulent for all Authorized Users
during the prior six months, as applicable. Contractor shall also provide a
separate summary report on a semi-annual basis containing the elements listed
in subsections (i) through (vii) above for all State Agency Authorized Users. The
semi-annual summary reports required by this section shall be made available
in electronic format by Contractor, in the form and manner requested by OGS.
The semi-annual reports shall be provided by Contractor within thirty (30) days
of January 1st and June 30th of each contract year for the prior six (6) month
reporting period. If the contract period begins or ends in a fractional portion of a
reporting period, only the reporting elements listed in subsections (i) through
(vii) above for such fractional period shall be reported in the applicable semi-
annual report.
C. Various Reports.
Online Reporting Portal:
Contractor shall provide Authorized Users with
access to an online reporting portal and shall be required to ensure that each
Authorized User and OGS EVTA is provided only the information specific to that
Authorized User’s payment program respecting American Express® Card
Transactions in the reasonable format and timeframe requested by the
Authorized User or OGS EVTA. Authorized Users shall be able to export
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Transaction Data from the online reporting portal in a variety of file formats (e.g.,
csv; .xml; .pdf; .html; .xls; and .tab; etc.).
Compliance Reporting:
For data security compliance reporting with respect to
American Express® Card Transactions, the Contractor shall offer PCI
compliance assistance to all Authorized Users and shall maintain all Reports on
Validation Documentation (as such term is defined in the American Express Data
Security Operating Policy) documenting an Authorized User’s PCI compliance
under the Contract. Contractor shall retain any and all Reports including the
Validation Documentation associated with the Contract in accordance with
Appendix A, Section 10
, Records.
Ad Hoc Reporting:
Upon request of the OGS EVTA or by Authorized Users,
Contractor shall offer custom reporting as requested by Authorized Users or the
OGS EVTA. The OGS EVTA may, upon written notice to Contractor (such notice
to include all details of the customized report outlined in notice) request from
Contractor customized reporting (e.g., printed or online, or through secure
internet applications) be submitted. If Contractor’s systems do not have
information or data requested by OGS EVTA or Authorized Users, OGS EVTA or
Authorized Users as applicable, shall promptly supply Contractor such
information to be included in the customized Ad Hoc Reporting. Contractor shall
provide said Ad Hoc Reporting within 30 calendar days from the date of the
request, or such other timeframe as mutually agreed upon.
Contractor may charge an additional fee, at Contractor’s sole discretion, for such
custom reporting, it being understood that such additional fee for custom
reporting is subject to the prior approval of the Authorized User or OGS. The
Contractor will use reasonable efforts to offer a variety of report formats to meet
the needs of an Authorized User or OGS, as required. If Contractor’s systems do
not have information or data that is requested by OGS EVTA or Authorized
Users, OGS EVTA or Authorized Users, as applicable shall promptly supply
Contractor such information to be included in the customized Ad Hoc Reporting.
Summary Reports for OGS EVTA:
For the purpose of supporting program
monitoring and Contract administration, the Contractor shall report to OGS
throughout the Contract term the following reports:
1. Quarterly ending reports.
2. Annual reports summarizing the previous year’s quarterly Contract usage.
Contractor shall maintain data that indicates if an Authorized User is a State or
Non-State agency, and whether or not the account is in open or closed status.
All data obtained by OGS EVTA through the Contractor’s report submissions
shall include, but not be limited to:
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1.
Authorized User Name (as such Authorized User has indicated on the OGS
approved Program Plan Application and Work Order forms)
2.
Authorized User Payment Program Name (as such Authorized User has
indicated on the OGS approved Program Plan Application and Work Order
forms)
3.
An Authorized User’s OGS EVTA approval number (as indicated on such
OGS approved Authorized User Program Plan Application and Work Order
Forms)
4.
Authorized User DBA Name and Legal Name
5.
Authorized User Location (e.g., street address)
6.
Authorized User Contact Information (e.g., person name, email and phone)
and will be provided to OGS in Ad Hoc reporting only.
7.
Merchant Identification Number (MID) (also known as Merchant Number)
8.
Chain Affiliated Property Number (CAP)
9.
Discount
10.
Gateway Fees (if applicable) by Service Establishment (SE) of an Authorized
User. Gateway Fees are provided to OGS in a separate report from the
quarterly and annual reports.
11.
Net Total
12.
Total number of reversals/Chargebacks by Authorized User
Copies of Invoices:
OGS reserves the right to request (by written notice to
Contractor) copies of an Authorized User’s invoice during the term of the
Contract. Such request by OGS shall include to the extent available, the
Authorized User CAP number or Merchant Number, month and year in which
OGS is requesting the copy of the invoice.
Other Reporting:
Upon OGS request, the Contractor shall provide:
1. In the event that unusual or suspicious activity is detected, or fraud is
suspected on an Authorized User’s merchant account, Contractor agrees, upon
request, to assist OGS or an Authorized User with implementing any available
fraud controls or monitoring tools.
2. Any other reports detailing Authorized User Contract usage as indicated in
the paragraph directly below.
Other reports and other information may include but not be limited to:
1. Total State vs. Non-State Contract usage and dollar volume of any all
American Express® Card Transactions under this Contract. OGS shall assist
Contractor if Contractor cannot determine a State vs. Non State Authorized User.
2. State Agency and Non-State Agency annual American Express® Card
Transactions volume (i.e., subtotal/grand total per Authorized User (AU)
Payment Program Name/location, subtotal/grand total per AU Merchant ID,
etc.).
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3. Total State and Non-State annual number of American Express® Card
Transactions, separate and combined.
4. Annual chargeback information including total number of Chargebacks,
Credits/debits and total Chargeback amounts for Credits/debits.
27.
TRAINING
Online training for Authorized User(s) can be found at Contractor’s website:
https://www.americanexpress.com/us/merchant/support-
center.html?linknav=merchant-nsnu-training-supportcenter
or via some other
mutually agreed upon method. Contractor agrees that OGS will post the
Merchant Regulations on their web site as a primary informational resource for
all Authorized Users. In addition, upon request, Contractor agrees to provide the
following training, including but not limited to, at no additional cost:
(1) Basic processing / Card acceptance procedures;
(2) Merchant Interactive (MI);
(3) Security and fraud detection; and
(4) General overview of support available (e.g., 800 number merchant
support, on-line resources).
28.
POINT OF CONTACT
American Express shall provide a point of contact, along with the appropriate
level of support staff, whose role will include, but not be limited to, the following
functions:
•
Oversee the timely processing of American Express® Card Transactions
within the American Express Network by the Authorized User;
•
Ensure the services provided for under this Agreement are performed; and
•
Communicate any identified problems/situations to the Authorized User.
29.
LATE PAYMENT REMEDY
In cases where American Express’s payment of Authorized User’s Charges is five
(5) or more days late and not the result of any act or inaction by Authorized User,
Authorized User’s Bank, the FSP, Force Majeure (as defined in Clause 44 of
Appendix B) or other act or inaction by a party other than American Express,
American Express will pay Authorized User daily interest on the amount of such
payment (but not compounded daily), from the date due until the date such
payment is received. Such interest rate if any, shall be paid monthly in arrears
on the amount of the late payment, with such rate of interest calculated at the
Federal Reserve H.15 (commercial paper, non-financial, 1-month, daily) rate
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published
at
such
time
at
the
following
website:
http://www.federalreserve.gov/releases/h15/data.htm
.
Authorized User agrees to contact the then current point of contact at American
Express in writing in all such cases where Authorized User believes that this late
payment remedy is available to Authorized User. The American Express point of
contact as of the Effective Date is set forth below. Authorized User agrees to
include Authorized User’s Merchant Number with this request and provide
American Express with all necessary documents to support Authorized User’s
request. Authorized User also agrees to allow American Express a commercially
reasonable amount of time to investigate the matter and to work with American
Express to resolve the matter if there are any disagreements. Contractor shall
notify OGS, in accordance with section 53 of this Agreement, in the event that
Contractor’s then current point of contact changes. Such notice shall include
the name and contact information of such new point of contact.
American Express Travel Related Service Company, Inc.
P.O. Box 299051
Fort Lauderdale, FL 33329
Attn: Department 87
Email: American.Express.Contract.Keying@aexp.com
Fax: (602) 744-8413
30.
GENERAL AUTHORIZED USER RESPONSIBILITIES
A. An Authorized User that is a State agency must complete, and have approved
by the EVTA, a Program Plan Application Form. This Form must be forwarded to
American Express prior to the initiation of an American Express® Card
acceptance program. An Authorized User that is a State agency must also
complete a Work Order Form, to initiate the provision of billable services by
American Express consistent with the requirements identified by the Authorized
User in its Work Order Form.
B. Authorized User that is not a State agency: The Parties acknowledge that an
Authorized User that is not a State Agency is required to submit its completed
Program Plan Application Form to the EVTA, but that the EVTA only
acknowledges receipt and does not have an approval role. Upon receipt of an
executed Program Plan Application Form that denotes “receipt” by the EVTA, the
Contractor can begin to design an American Express® Card acceptance program
under this Agreement. Authorized User that is not a State agency must complete
a Work Order Form, to initiate the provision of billable services by American
Express consistent with the requirements identified by the Authorized User in
its Word Order Form.
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C. This section 30.C shall supersede sections 26 and 30 of Appendix B in relation
to the ability of the Authorized User to modify the terms of the transaction
between Contractor and Authorized User. In order for an Authorized User to
propose any additional terms and conditions, such terms and conditions must
be included in Authorized User’s Work Order Form and must be mutually agreed
to by Authorized User and Contractor.
31.
MIGRATION OF CURRENT CARD ACCEPTANCE AGREEMENTS
Eligible Authorized Users, including educational institutions of the State of New
York, with independent contracts for Contractor services may, at any time,
convert any existing Card Acceptance Agreements with American Express to
participate under this Agreement and upon execution of a Work Order Form shall
have all rights of an “Authorized User,” provided that notice of such migration
shall be forwarded to the Contractor in compliance with the notice requirements
of this Agreement. The State understands that as of the effective date of this
Agreement, the (i) Metropolitan Transportation Authority (MTA), and the MTA's
operating agencies: MTA New York City Transit, MTA Bus, Long Island Rail Road,
Metro-North Railroad, and MTA Bridges and Tunnels; and (2) New Jersey Transit
Corporation, each have their own Card Acceptance Agreement with Contractor.
32.
PRESS RELEASES
American Express agrees to obtain written approval from the State or the
Authorized User prior to the issuance of any news releases and any paid or
unpaid advertising or marketing concerning the subject matter. Notwithstanding
the foregoing, American Express may list the State and Authorized Users’ name,
address, (including the website addresses or URLs), and customer service
telephone numbers where Contractor communicates where the Card is accepted
and for purposes of Cardmember servicing, including on Cardmembers' monthly
statements, Chargeback documentation, and routine customer service
communications.
33.
CONFIDENTIALITY
A. American Express agrees to comply with the confidentiality requirements of
Appendix B, Clause 6. In addition, the following confidentiality requirements are
imposed on the Contractor, State and Authorized Users:
(1) Each party shall keep confidential and not disclose to any third party
any information it receives from the other party that is not publicly
available or necessary for providing service under this Agreement. The
Parties understand that this Agreement will become a State public record.
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(2) An Authorized User agrees that the names, addresses and account
numbers of Cardmembers are the sole and exclusive property of American
Express. An Authorized User shall not use or disclose any Cardmember’s
name, address or account number except as provided in this Agreement.
B. If any unique confidentiality requirements are necessary for a specific
Authorized User, then these shall be set forth on the Work Order Form and must
be agreed to by Contractor. This could include the signing of agreements to
adhere to certain laws, rules and/or procedures.
34.
PROPRIETARY RIGHTS AND PERMITTED USES
Except as otherwise expressly specified in the Merchant Regulations, neither
party has any rights in the other party’s Marks nor shall one party use the other
party’s Marks without its prior written consent.
35.
REPRESENTATIONS AND WARRANTIES
The State and American Express, respectively, represent and warrant to the
other that: (i) it is duly organized, validly existing, and in good standing under
the laws of the jurisdiction in which it is organized; (ii) it is duly qualified and
licensed to do business in all jurisdictions in which it conducts business; (iii) it
has full authority to enter into the Agreement and all necessary assets and
liquidity to perform its obligations and pay its debts hereunder as they become
due; (iv) there is no circumstance threatened or pending that might have a
material adverse effect on its business or its ability to perform its obligations or
pay its debts hereunder; (v) the individual who signs the Agreement on behalf of
a party has the authority to bind that party to the Agreement; and (vi) it is a
sophisticated business, has negotiated individually each of the material
provisions of the Agreement on an arm’s length basis with the advice of
competent counsel, in order to meet the respective needs of each party, and that
no ambiguity in the drafting of the Agreement shall be construed against the
drafter. The State further represents and warrants to American Express that:
(vii) the State is authorized to enter into the Agreement on behalf of Authorized
Users, including those indicated in the Agreement; (viii) the State is not (A) listed
on the U.S. Department of Treasury, Office of Foreign Assets Control, Specially
Designated
Nationals
and
Blocked
Persons
List
(available
at
www.treas.gov/ofac
), (B) listed on the U.S. Department of State’s Terrorist
Exclusion List (available at
www.state.gov
), or (C) located in or operating under
license issued by a jurisdiction identified by the U.S. Department of State as a
sponsor of international terrorism, by the U.S. Secretary of the Treasury as
warranting special measures due to money laundering concerns, or as
noncooperative with international anti-money laundering principles or
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procedures by an intergovernmental group or organization of which the United
States is a member; (ix) State (or Authorized Users as the case may be) has not
assigned to any third party any payments due to the State (or Authorized User)
under the Agreement and all indebtedness arising from Charges are for bona fide
sales of goods or services (or both) at State’s or Authorized User’s Establishments
and free of any liens, claims, and encumbrances other than ordinary sales taxes
or with respect to liens or other security interests that the State (or Authorized
User) grant pursuant to credit facilities obtained in the ordinary course of
business from the State (or Authorized User) commercial banks or other
financial institutions; (x) all information that the State (or Authorized User)
provided in connection with the Agreement is true, accurate, and complete; and
(xi) the State (or Authorized User) have read the Agreement and kept a copy for
your file. If any of the State (or Authorized User) representations or warranties
in the Agreement become untrue, inaccurate, or incomplete at any time, we may
immediately terminate the Agreement in our discretion.
36.
PROCUREMENT LOBBYING LAW
Pursuant to State Finance Law §§139-j and 139-k, certain restrictions on
communications between OGS and an Offerer/bidder are imposed during the
procurement process. An Offerer/bidder is restricted from making contacts from
the earliest notice of intent to solicit offers/bids through final award and
approval of the Procurement Contract by OGS and, if applicable, the Office of the
State Comptroller (“restricted period”) to other than designated staff unless it is
a contact that is included among certain statutory exceptions set forth in State
Finance Law §139-j (3) (a). Designated staff, as of the date hereof, is identified
on the first page of this Agreement. OGS employees are also required to obtain
certain information when contacted during the restricted period and make a
determination of the responsibility of the Offerer/bidder pursuant to these two
statutes. Certain findings of non-responsibility can result in rejection for
contract award and in the event of two findings within a four-year period, the
Offerer/bidder is debarred from obtaining governmental Procurement Contracts.
Further information about these requirements can be found on the OGS website:
http://www.ogs.state.ny.us/aboutOgs/regulations/defaultAdvisoryCouncil.ht
ml
37.
TAX LAW 5-A
Section 5-a of the Tax Law, as amended, effective April 26, 2006, requires certain
contractors awarded state contracts for commodities, services and technology
valued at more than $100,000 to certify to the Department of Taxation and
Finance (DTF) that they are registered to collect New York State and local sales
and compensating use taxes. The law applies to contracts where the total
amount of such contractors’ sales delivered into New York State are in excess of
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$300,000 for the four quarterly periods immediately preceding the quarterly
period in which the certification is made, and with respect to any affiliates and
subcontractors whose sales delivered into New York State exceeded $300,000 for
the four quarterly periods immediately preceding the quarterly period in which
the certification is made.
This law imposes upon certain contractors the obligation to certify whether or
not the contractor, its affiliates, and its subcontractors are required to register
to collect state sales and compensating use tax and contractors must certify to
DTF that each affiliate and subcontractor exceeding such sales threshold is
registered with DTF to collect New York State and local sales and compensating
use taxes. The law prohibits the State Comptroller, or other approving agency,
from approving a contract awarded to a contractor meeting the registration
requirements but who is not so registered in accordance with the law.
Contractor certification forms and instructions for completing the forms are
attached to this bid. Form No. ST-220-TD must be filed with and returned
directly to DTF. Unless the information upon which the ST-220-TD is based
changes, this form only needs to be filed once with DTF. If the information
changes for the contractor, its affiliate(s), or its subcontractor(s), a new Form No.
ST-220-TD must be filed with DTF.
Form ST-220-CA must be filed with the bid and submitted to the procuring
covered agency certifying that the contractor filed the ST-220-TD with DTF.
Proposed contractors should complete and return the certification forms within
two business days of request (if the forms are not completed and returned with
bid submission). Failure to make either of these filings may render a bidder non-
responsive and non-responsible. Bidders shall take the necessary steps to
provide properly certified forms within a timely manner to ensure compliance
with the law.
Vendors may call DTF at
1-800-698-2909
for any and all questions relating to
Section 5-a of the Tax Law and relating to a company's registration status with
the DTF. For additional information and frequently asked questions, please refer
to the DTF web site: http://www.nystax.gov
38.
PERFORMANCE BOND
In accordance with Appendix B, §58 Performance/Bid Bond, the Commissioner
of OGS has determined that no performance, payment or Bid bond, or negotiable
irrevocable letter of credit or other form of security for the faithful performance
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of the Contract shall be required at any time during the Initial Term, or any
renewal term, for this Agreement.
39.
DISPUTE RESOLUTION/GOVERNING LAW
In the event of any dispute or controversy arising out of or relating to this
Agreement, the State, subject Authorized User and Contractor agree to exercise
their best efforts to resolve the dispute as soon as possible. The Contractor, State
and Authorized User shall, without delay, continue to perform their respective
obligations under this Agreement which are not affected by the dispute.
Should the dispute not be resolved amicably, each party shall use the legal
procedures as governed by New York State Law.
All documents, materials, and information in the possession of either party that
are relevant to the claim(s) or dispute(s) shall be made available to the other
party for review and copying according to the applicable New York State Law
requirements. This language covers the discovery rules and guidelines
applicable in New York State as well as any laws that apply to claims or disputes
by/between State entities.
Governing Law. The Agreement and all Claims are governed by and shall be
construed and enforced according to the laws of the State of New York without
regard to internal principles of conflicts of law. Any action by either party
hereunder shall be brought only in the appropriate federal or state court located
in the State of New York. Each party consents to the exclusive jurisdiction of
such court and waives any claim of lack of jurisdiction or
forum non conveniens
.
40.
TERMINATION
Authorized User agrees that this Agreement is a contract to extend financial
accommodations and that if insolvency or similar proceedings are filed with
respect to Authorized User, the subject Authorized User’s Work Order Form will
be automatically terminated. If Authorized User ceases or adversely alters
Authorized User’s operations, or if Authorized User sells all or substantially all
of Authorized User’s assets or stock, or if Authorized User becomes insolvent, or
if Contractor receives a disproportionate number of Cardmember inquiries or
complaints relating to Charges at an Authorized User Location, or if Contractor
has reasonable cause to believe that an Authorized User will not be able to
perform all of its obligations under this Agreement, Contractor may, in its
discretion, immediately terminate the Work Order Form for the subject
Authorized User. Authorized User agrees to notify Contractor immediately if any
of the above events occur.
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Upon termination, Authorized User must: 1) remove all displays of American
Express Marks and return Contractor’s materials and equipment immediately;
and, 2) submit to Contractor any Charges and Credits incurred prior to the
termination in accordance with this Agreement. Termination of the Agreement
for any reason does not relieve the Parties of their respective rights and duties
arising prior to the effective date of termination that by their nature are intended
to survive termination, including the provision of the sections entitled
"Agreement Costs,” “Contractor Payment," “Settlement Payment Method,” "Full
Recourse," "Confidentiality," “Dispute Resolution Process,” “Indemnification,”
"Termination," “Trademarks and Service Marks,” “No Waiver,” “Section 58 of
Appendix B, Limitation of Liability,” and Contractor’s Full Recourse rights and
Authorized User’s duties set forth in the Merchant Regulations to protect
Cardmember Information, retain documents evidencing Transactions, and
notify Authorized User’s Recurring Billing customers of such termination shall
survive termination of this Agreement.
41.
CONTRACTOR REQUIREMENTS AND PROCEDURES FOR BUSINESS
PARTICIPATION OPPORTUNITIES FOR NYS CERTIFIED MINORITY
AND
WOMEN-OWNED
BUSINESS
ENTERPRISES
AND
EQUAL
EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS
AND WOMEN
I.
New York State Law
Pursuant to New York State Executive Law Article 15-A and Parts 140-
145 of Title 5 of the New York Codes, Rules and Regulations (
NYCRR
),
the New York State Office of General Services (
OGS
” is required to
promote opportunities for the maximum feasible participation of New
York State-certified Minority- and Women-Owned Business Enterprises
(
MWBEs
) and the employment of minority group members and women in
the performance of OGS contracts.
II.
General Provisions
A.
OGS is required to implement the provisions of New York State
Executive Law Article 15-A and 5 NYCRR Parts 140-145 (
MWBE
Regulations
) for all State contracts as defined therein, with a value
(1) in excess of $25,000 for labor, services, equipment, materials, or
any combination of the foregoing or (2) in excess of $100,000 for real
property renovations and construction.
B.
The Contractor agrees, in addition to any other nondiscrimination
provision of the Contract and at no additional cost to OGS, to fully
comply and cooperate with OGS in the implementation of New York
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State Executive Law Article 15-A and the regulations promulgated
thereunder. These requirements include equal employment
opportunities for minority group members and women (
EEO
) and
contracting opportunities for MWBEs. Contractor’s demonstration
of “good faith efforts” pursuant to 5 NYCRR § 142.8 shall be a part
of these requirements. These provisions shall be deemed
supplementary to, and not in lieu of, the nondiscrimination
provisions required by New York State Executive Law Article 15 (the
Human Rights Law
) or other applicable federal, State, or local laws.
C.
Failure to comply with all of the requirements herein may result in
a finding of non-responsiveness, a finding of non-responsibility,
breach of contract, withholding of funds, suspension or termination
of the Contract, and/or such other actions or enforcement
proceedings as allowed by the Contract and applicable law.
III. Equal Employment Opportunity (EEO)
A.
The provisions of Article 15-A of the Executive Law and the rules
and regulations promulgated thereunder pertaining to equal
employment opportunities for minority group members and women
shall apply to all Contractors, and any subcontractors, awarded a
subcontract over $25,000 for labor, services, including legal,
financial
and
other
professional
services,
travel,
supplies,
equipment, materials, or any combination of the foregoing, to be
performed for, or rendered or furnished to, the contracting State
agency (the
Work
) except where the Work is for the beneficial use of
the Contractor.
1.
Contractor and subcontractors shall undertake or continue
existing EEO programs to ensure that minority group members
and women are afforded equal employment opportunities without
discrimination because of race, creed, color, national origin, sex,
age, disability, or marital status. For these purposes, EEO shall
apply in the areas of recruitment, employment, job assignment,
promotion, upgrading, demotion, transfer, layoff or termination,
and rates of pay or other forms of compensation. This
requirement does not apply to: (i) the performance of work or the
provision of services or any other activity that is unrelated,
separate, or distinct from the Contract; or (ii) employment outside
New York State.
2.
By entering into this Contract, Contractor certifies that the text
set forth in clause 12 of Appendix A, attached hereto and made
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a part hereof, is Contractor’s equal employment opportunity
policy. In addition, Contractor agrees to comply with the Non-
Discrimination Requirements set forth in clause 5 of Appendix A.
B.
Form EEO 100 – Staffing Plan
To ensure compliance with this section, the Contractor agrees to
submit, or has submitted with the Bid, a staffing plan on Form EEO
100 to OGS to document the composition of the proposed workforce
to be utilized in the performance of the Contract by the specified
categories listed, including ethnic background, gender, and federal
occupational categories.
C.
NYS Contract System -EE0 101 Workforce Utilization Reporting
Module (Commodities and Services)
1.
The Contractor shall submit, and shall require each of its
subcontractors to submit, a Workforce Audit to report the actual
workforce utilized in the performance of the Contract by the
specified categories listed including ethnic background, gender,
and Federal occupational categories. The Workforce Audits must
be submitted electronically in the NYS Contract System through
the Workforce Audit Module found at the following website:
https://ny.newnycontracts.com and must be submitted on a
quarterly basis during the term of the Contract by the 10th day
of April, July, October, and January.
2. Separate audits shall be completed by Contractor and all
subcontractors.
3. In limited instances, the Contractor or subcontractor may not be
able to separate out the workforce utilized in the performance of
the Contract from its total workforce. When a separation can be
made, the Contractor or subcontractor shall submit the
Workforce Audit and indicate that the information provided
relates to the actual workforce utilized on the Contract. When the
workforce to be utilized on the Contract cannot be separated out
from the Contractor's or subcontractor's total workforce, the
Contractor or subcontractor shall submit the Workforce Audit
and indicate that the information provided is the Contractor's or
subcontractor’s total workforce during the subject time frame,
not limited to work specifically performed under the Contract.
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D.
Contractor shall comply with the provisions of the Human Rights
Law and all other State and federal statutory and constitutional
non-discrimination provisions. Contractor and subcontractors shall
not discriminate against any employee or applicant for employment
because of race, creed (religion), color, sex, national origin, sexual
orientation, military status, age, disability, predisposing genetic
characteristic, marital status, or domestic violence victim status,
and shall also follow the requirements of the Human Rights Law
with regard to non-discrimination on the basis of prior criminal
conviction and prior arrest.
IV. Contract Goals
A.
For purposes of this procurement, OGS conducted a comprehensive
search and determined that the Contract does not offer sufficient
opportunities to set goals for participation by MWBEs as
subcontractors,
service
providers,
or
suppliers
to
Contractor. Contractor is, however, encouraged to make every good
faith effort to promote and assist the participation of MWBEs on this
Contract for the provision of services and materials. The directory
of New York State Certified MWBEs can be viewed at:
https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.as
p?TN=ny&XID=2528
. Additionally, following Contract execution,
Contractor is encouraged to contact the Division of Minority and
Women’s Business Development ((518) 292-5250; (212) 803-2414;
or (716) 846-8200) to discuss additional methods of maximizing
participation by MWBEs on the Contract.
B.
Good Faith Efforts
Pursuant to 5 NYCRR § 142.8, evidence of good faith efforts may
include, but not be limited to, the following:
1. A list of the general circulation, trade, and MWBE-oriented
publications and dates of publications in which the Contractor
solicited
the
participation
of
certified
MWBEs
as
subcontractors/suppliers, copies of such solicitations, and any
responses thereto.
2. A list of the certified MWBEs appearing in the Empire State
Development (
ESD
) MWBE directory that were solicited for this
Contract. Provide proof of dates or copies of the solicitations and
copies of the responses made by the certified MWBEs. Describe
specific reasons that responding certified MWBEs were not
selected.
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3. Descriptions of the Contract documents/plans/specifications
made available to certified MWBEs by the Contractor when
soliciting their participation and steps taken to structure the
scope of work for the purpose of subcontracting with, or
obtaining supplies from, certified MWBEs.
4. A description of the negotiations between the Contractor and
certified MWBEs for the purposes of complying with the MWBE
goals of this Contract.
5. Dates of any pre-bid, pre-award, or other meetings attended by
Contractor, if any, scheduled by OGS with certified MWBEs
whom OGS determined were capable of fulfilling the MWBE
goals set in the Contract.
6. Other information deemed relevant to the request.
V.
Fraud
Any suspicion of fraud, waste, or abuse involving the contracting or
certification of MWBEs shall be immediately reported to ESD’s Division
of Minority and Women’s Business Development at (855) 373-4692.
ALL FORMS ARE AVAILABLE AT:
https://ogs.ny.gov/MWBE
42.
PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE
SERVICE-DISABLED VETERAN OWNED BUSINESSES
Article 17-B of the New York State Executive Law provides for more
meaningful participation in public procurement by certified Service-Disabled
Veteran-Owned Businesses (
SDVOBs
), thereby further integrating such
businesses into New York State’s economy. OGS recognizes the need to
promote the employment of service-disabled veterans and to ensure that
certified service-disabled veteran-owned businesses have opportunities for
maximum feasible participation in the performance of OGS contracts.
In recognition of the service and sacrifices made by service-disabled veterans
and in recognition of their economic activity in doing business in New York
State, Bidders/Contractors are strongly encouraged and expected to consider
SDVOBs in the fulfillment of the requirements of the Contract. Such
participation may be as subcontractors or suppliers, as protégés, or in other
partnering or supporting roles.
For purposes of this procurement, OGS conducted a comprehensive search
and determined that the Contract does not offer sufficient opportunities to
set specific goals for participation by SDVOBs as subcontractors, service
providers, and suppliers to Contractor. Nevertheless, Bidder/Contractor is
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encouraged to make good faith efforts to promote and assist in the
participation of SDVOBs on the Contract for the provision of services and
materials. The directory of New York State Certified SDVOBs can be viewed
at:
https://ogs.ny.gov/Veterans/
Bidder/Contractor is encouraged to contact the Office of General Services’
Division of Service-Disabled Veteran’s Business Development at 518-474-
2015 or VeteranDevelopment@ogs.ny.gov to discuss methods of maximizing
participation by SDVOBs on the Contract.
ALL FORMS ARE AVAILABLE AT:
https://ogs.ny.gov/Veterans/
43.
INSURANCE REQUIREMENTS
The Contractor shall maintain in force at all times during the terms of the
Contract, policies of insurance pursuant to the requirements outlined in
Attachment K – Insurance Requirements.
44.
APPENDIX B AMENDMENTS
Appendix B, clause 1 (Ethics Compliance)
is deleted and replaced with the
following:
1. ETHICS COMPLIANCE
All Bidders/Contractors and their employees must
comply with the applicable requirements of Sections 73 and 74 of the Public
Officers Law, other applicable State codes, rules, regulations and executive
orders establishing ethical standards for the conduct of business with New York
State. In signing the Bid, Bidder certifies full compliance with those provisions
for any present or future dealings, transactions, sales, contracts, services, offers,
relationships, etc., involving New York State and/or its employees. Failure to
comply with those provisions may result in disqualification from the Bidding
process, termination of contract, and/or other civil or criminal proceedings as
required by law.
Appendix B, subdivision b of clause 6 (Confidential/Trade Secret Materials)
is deleted and replaced as follows:
b. Commissioner or Authorized User
Contractor further warrants, covenants
and represents that any confidential information of the State, Authorized Users
or the EVTA obtained by Contractor, its agents, Subcontractors, officers,
distributors, resellers or employees in the course of performing its obligations,
including without limitation, security procedures, business operations
information, or commercial proprietary information in the possession of the State
or any Authorized User hereunder, will not be divulged to any third parties;
except: (i) pursuant to an order, decree, subpoena or other validly issued judicial
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or governmental agency process (including through requests for information or
by oral questions); or (ii) if such information is requested from us by our or any
of our Affiliates’ regulators. Contractor shall not be required to keep confidential
any such material that is publicly available through no fault of Contractor,
independently developed by Contractor without reliance on confidential
information of the Authorized User, or otherwise obtained under the Freedom of
Information Act or other applicable New York State laws and regulations. This
warranty shall survive termination of this Contract. Contractor further agrees to
take appropriate steps as to its agents, Subcontractors, officers, distributors,
resellers or employees regarding the obligations arising under this clause to
insure such confidentiality.
Appendix B, subdivision d. of clause 25 (Participation in Centralized
Contracts)
is deleted and replaced with the following:
d. Responsibility for Performance
Participation in state Centralized Contracts
by Authorized Users is permitted upon the following conditions: (i) the
responsibility with regard to performance of any contractual obligation,
covenant, condition or term thereunder by any Authorized User other than State
Agencies shall be borne and is expressly assumed by such Authorized User and
not by the State; (ii) a breach of the Contract by any particular Authorized User
shall neither constitute nor be deemed a breach of the Contract as a whole which
shall remain in full force and effect, and shall not affect the validity of the
Contract nor the obligations of the Contractor thereunder respecting non-
breaching Authorized Users, whether State or otherwise; (iii) for a breach by an
Authorized User other than a State Agency, the State specifically and expressly
disclaims any and all liability for such breach; and (iv) each non-state agency
Authorized User and Contractor guarantees to save the State, its officers, agents
and employees harmless from any liability that may be or is imposed by their
respective failure to perform in accordance with their respective obligations
under the Contract.
Appendix B, clause 39 (Employees, Subcontractors and Agents)
is deleted
and replaced with the following:
39.
EMPLOYEES,
SUBCONTRACTORS
and
AGENTS
All
employees,
Subcontractors or agents performing work under the Contract must be trained
staff or technicians who meet or exceed the professional, technical and training
qualifications set forth in the Bid Specifications or the Bid Documents, whichever
is more restrictive, and must comply with all security and administrative
requirements of the Authorized User. In the event that Contractor furnishes any
employee, Subcontractor or agent for the purposes of conducting work under
this Agreement at an Authorized User’s physical location, then the Commissioner
reserves the right to conduct a security background check or otherwise approve
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any such employee, Subcontractor or agent furnished by Contractor and to
refuse access to or require replacement of any personnel for cause based on,
including but not limited to, professional, technical or training qualifications,
quality of work or change in security status or non-compliance with Authorized
User’s security or other requirements. Such approval shall not relieve the
Contractor of the obligation to perform all work in compliance with the Contract
terms. The Commissioner reserves the right to reject and/or bar from the facility
for cause any employee, Subcontractor, or agents of the Contractor.
Appendix B, clause 40 (Assignment)
is deleted and replaced with the following:
40. ASSIGNMENT
In accordance with Section 138 of the State Finance Law,
the Contractor shall not assign, transfer, convey, sublet, or otherwise dispose
of the Agreement or its right, title or interest therein, or its power to execute
such Agreement to any other person, company, firm or corporation in
performance of the Agreement without the prior written consent of the
Commissioner or Authorized User (as applicable); provided, however, any
consent shall not be unreasonably withheld, conditioned, delayed or denied.
The Commissioner may waive the requirement that such consent be obtained
in advance where the Contractor verifies that the assignment, transfer,
conveyance, sublease, or other disposition is due to, but not necessarily limited
to, a reorganization, merger, or consolidation of the Contractor’s business
entity or enterprise.
Upon written notice to the Contractor, the Agreement may be assigned without
the consent of the Contractor to another State Agency or subdivision of the State
pursuant to a governmental reorganization or assignment of functions under
which the functions are transferred to a successor Agency or to another Agency
that assumes OGS responsibilities for the Agreement.
Except as otherwise specified herein, the Agreement binds, and inures to the
benefit of, the parties and their respective successors and permitted assigns.
Appendix B, subdivision a. of clause 43 (Termination)
is deleted and replaced
with the following:
a. For Cause
: For a material breach that remains uncured for more than thirty
(30) days or other greater specified period after written notice to the Contractor,
the Contract or Purchase Order may be terminated by the Commissioner or
Authorized User at the Contractor’s expense where Contractor becomes unable
or incapable of performing, or meeting any requirements or qualifications set
forth in the Contract, or for non-performance, or upon a determination that
Contractor is non-responsible. Such termination shall be upon written notice to
the Contractor. In such event, the Commissioner or Authorized User may
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complete the contractual requirements in any manner it may deem advisable
and pursue available legal or equitable remedies for breach. Notwithstanding
anything else in this subdivision to the contrary, if the Contract is terminated
pursuant to this subdivision, the Authorized User shall remain liable for all
accrued but unpaid amounts incurred and owed to Contractor under this
Contract through the date of the termination. Contractor shall use due diligence
and provide any outstanding deliverables.
Appendix B, clause 44 (Savings/Force Majeure)
is deleted and replaced with
the following:
44. SAVINGS/FORCE MAJEURE
A force majeure occurrence is an event or
effect that cannot be reasonably anticipated or controlled. Force majeure
includes, but is not limited to, acts of God, acts of war, acts of public enemies,
strikes, fires, explosions, actions of the elements, floods, or other similar causes
beyond the control of the Contractor or the Commissioner in the performance of
the Contract which non-performance, by exercise of reasonable diligence, cannot
be prevented. Contractor shall provide the Commissioner with written notice of
any force majeure occurrence as soon as the delay is known.
Neither the Contractor nor the Commissioner shall be liable to the other for any
delay in or failure of performance under the Contract due to a force majeure
occurrence. Any such delay in or failure of performance shall not constitute
default or give rise to any liability for damages. The existence of such causes of
such delay or failure shall extend the period for performance to such extent as
determined by the Contractor and the Commissioner to be necessary to enable
complete performance by the Contractor if reasonable diligence is exercised after
the cause of delay or failure has been removed. For the avoidance of doubt, a
force majeure event shall not relieve Contractor or Authorized Users from their
payment obligations under the Agreement.
Notwithstanding the above, at the discretion of the Commissioner where the
delay or failure will significantly impair the value of the Contract to the State or
to Authorized Users, the Commissioner may:
a. Accept allocated performance or deliveries from the Contractor. The
Contractor, however, hereby agrees to grant preferential treatment to
Authorized Users with respect to Product subjected to allocation; and/or
b. Purchase from other sources (without recourse to and by the Contractor
for the costs and expenses thereof) to replace all or part of the Products
which are the subject of the delay, which purchases may be deducted from
the Contract quantities without penalty or liability to the State; or
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c. Terminate the Contract or the portion thereof which is subject to delays,
and thereby discharge any unexecuted portion of the Contract or the
relative part thereof.
In addition, the Commissioner reserves the right, in his/her sole discretion, to
make an upward equitable adjustment in the Contract pricing should extreme
and unforeseen volatility in the marketplace affect pricing or the availability of
supply. "Extreme and unforeseen volatility in the marketplace" is defined as
market circumstances which meet the following criteria: (i) the volatility is due
to causes outside the control of Contractor; (ii) the volatility affects the
marketplace or industry, not just the particular Contract source of supply; (iii)
the effect on pricing or availability of supply is substantial; and (iv) the volatility
so affects Contractor's performance that continued performance of the Contract
would result in a substantial loss.
Appendix B, clause 45 (Contract Invoicing)
is deleted and replaced with the
following:
45. CONTRACT INVOICING
a. Invoicing. Contractor and the dealers/distributors/resellers designated by the
Contractor, if any, shall provide complete and accurate billing invoices to each
Authorized User in order to receive payment. Billing invoices submitted to an
Authorized User must contain all information required by the Agreement and the
State Comptroller or other appropriate fiscal officer. Submission of an invoice
and payment thereof shall not preclude the Commissioner from requesting
reimbursement or demanding a price adjustment in any case where the Product
delivered is found to deviate from the terms and conditions of the Agreement or
where the billing was inaccurate.
Contractor shall provide, upon request of the Commissioner, any and all
information necessary to verify the accuracy of the billings. Such information
shall be provided in the format reasonably requested by the Commissioner and
in a media commercially available from the Contractor. The Commissioner may
direct the Contractor to provide the information to the State Comptroller or to
any Authorized User of the Agreement.
b. Payment of Agreement purchases made by an Authorized User when the State
Comptroller is responsible for issuing such payment. The Authorized User and
Contractor agree that payments for invoices submitted by the Contractor shall
only be rendered electronically unless payment by paper check is expressly
authorized by the Commissioner, in the Commissioner’s sole discretion, due to
extenuating circumstances. Such electronic payments shall be made in
accordance with ordinary State procedures and practices. The Contractor shall
comply with the State Comptroller’s procedures to authorize electronic
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payments. Authorization forms are available at the State Comptroller website at
www.osc.state.ny.us, by e-mail at epunit@osc.state.ny.us, or by telephone at
518-474-4032. Contractor acknowledges that it will not receive payment on any
invoices submitted under this Agreement that are payable by the State
Comptroller if it does not comply with the State Comptroller’s electronic payment
procedures, except where the Commissioner has expressly authorized payment
by paper check as set forth above.
c. Payment of Agreement purchases made by an Authorized User when the State
Comptroller is not responsible for issuing such payment. The Authorized User
and Contractor agree that payments for such Agreement purchases shall be
billed directly by Contractor on invoices/vouchers, together with complete and
accurate supporting documentation as required by the Authorized User. Such
payments shall be as mandated by the appropriate governing law from the
receipt of a proper invoice, subject to section 16 of the Agreement. Such
Authorized User and Contractor are strongly encouraged to establish electronic
payments.
Appendix B, subdivisions b and c. of clause 46 (Default – Authorized User)
is deleted and replaced with the following and the remaining paragraphs
renumbered accordingly:
b. Failure to Make Payment
. In the event a participating Authorized User fails
to make payment to the Contractor for Products delivered, accepted and properly
invoiced, within 60 days of such delivery and acceptance, the Contractor may,
upon 10 days advance written notice to both the Commissioner and the
Authorized User’s purchasing official, suspend additional shipments of Product
or provision of services to such entity until such time as reasonable
arrangements have been made and assurances given by such entity, and agreed
to by Contractor, for current and future Contract payments.
c. For Cause.
In the event an Authorized User commits a material breach of the
Agreement (other than as specified in section 46.b of this Appendix B and in the
first paragraph of section 40, Termination, of the Agreement), without waiving
its other rights and remedies, the Contractor has the right to send such
Authorized User a written notice specifying the breach and providing such
Authorized User an opportunity to cure the breach within a period of time no
less than 30 days (
Cure Period
). If a breach by an Authorized User is not cured
within the Cure Period, then Contractor has the right to suspend Card
acceptance by the subject Authorized User, with suspension to be effective not
less than 10 days following the end of the Cure Period. Contractor shall notify
OGS in writing if a breach by Authorized User is not cured within the Cure
Period. If the breach is not cured within 30 days of OGS’s receipt of notice from
Contractor, or other period of time mutually agreed to by Authorized User and
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Contractor, then Contractor may immediately terminate the subject Authorized
User’s Work Order Form. Notwithstanding the foregoing, if the Authorized User
disputes the existence of the material breach, it may invoke the Dispute
Resolution Process set forth in section 39 of the Agreement by providing written
notice of such dispute to Contractor within 10 days of its receipt of written
notification from Contractor under this paragraph. Contractor shall not
terminate the Authorized User’s Work Order Form during the pendency of the
Dispute Resolution Process. Contractor may suspend Card acceptance by the
Authorized User during the pendency of the Dispute Resolution Process,
provided that any such suspension shall be effective not less than 10 days
following the end of the Cure Period.
Appendix B, subdivision d. of clause 48 (Remedies for Breach)
is deleted and
replaced with the following:
d. Reimbursement of Costs Incurred
In the event of Contractor’s material
breach, the Contractor agrees to reimburse the Authorized User promptly for any
and all additional costs and expenses incurred for acquiring acceptable services,
and/or replacement Product. Should the cost of cover be less than the Contract
price, the Contractor shall have no claim to the difference. The Contractor
covenants and agrees that in the event suit is successfully prosecuted for any
default on the part of the Contractor, all costs and expenses expended or
incurred by the Authorized User in connection therewith, including reasonable
attorney’s fees, shall be paid by the Contractor.
Appendix B, clause 51 (Independent Contractor)
is deleted and replaced with
the following:
51. INDEPENDENT CONTRACTOR
No agency, partnership, joint-venture, or
employment relationship is created among OGS, EVTA, Contractor and
Authorized Users. Each party is solely responsible for its own acts and omissions
and
those
of
its
respective
agents,
employees,
representatives,
and
subcontractors in connection with the Contract. The Contractor agrees, during
the term of this Contract, to maintain at Contractor’s expense those benefits to
which its employees would otherwise be entitled by law, including health
benefits, and all necessary insurance for its employees, including worker’s
compensation, disability and unemployment insurance, and to provide the
Authorized User with certification of such insurance upon request. The
Contractor remains responsible for all applicable federal, state and local taxes,
and all FICA contributions.
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45.
COMPLIANCE WITH LAWS
The Parties shall comply with all applicable laws and government regulations
and rules.
46.
DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 35 ABOVE, AMERICAN
EXPRESS DOES NOT MAKE AND HEREBY DISCLAIM ANY AND ALL
REPRESENTATIONS, WARRANTIES, AND LIABILITIES, WHETHER EXPRESS,
IMPLIED, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
47.
NO THIRD PARTY BENEFICIARIES
The Agreement does not and is not intended to confer any rights or benefits on
any person that is not a party hereto and none of the provisions of the Agreement
shall be enforceable by any person other than the parties hereto, their successors
and permitted assigns.
48.
NO WAIVER
Either Party’s failure to enforce any term or condition of this Agreement or
exercise any of its rights under the Agreement shall not be a waiver of the right
to later enforce such term or condition or exercise such right under the
Agreement. No course of dealing by either party in exercising any of its rights
constitutes a waiver thereof. No waiver of any provision of the Agreement is
effective unless it is in writing and signed by the party against whom the waiver
is sought to be enforced. All rights and remedies of the parties are cumulative,
not alternative.
49.
CONDITIONS PRECEDENT
This Agreement shall not be deemed executed, valid or binding unless and until
approved in writing by the Attorney General and the State Comptroller. Any
amendment or extension of this Agreement shall also be subject to the approval
of the Attorney General and the State Comptroller.
50.
ASSIGNMENT BY STATE
The State agrees not to assign this Agreement without prior notice to and
reasonable consent of American Express; provided, however, that this Agreement
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may be assigned, without such consent to another agency or subdivision of the
State pursuant to a governmental reorganization or assignment of functions
under which the pertinent functions of an agency are transferred to a successor
agency or subdivision of the State.
51.
VENDOR RESPONSIBILITY
Contractor shall at all times during the term of this Agreement remain
responsible under the New York State Finance Law. Contractor agrees, if
requested by the Commissioner of General Services (the
Commissioner
) or his
or her designee, to present evidence of its continuing legal authority to do
business in New York State, integrity, experience, ability, prior performance, and
organizational and financial capacity.
The Commissioner or his or her designee, in his or her sole discretion, reserves
the right to suspend any or all activities under this Agreement, and the head of
a State agency, or his or her designee, reserves the right to suspend any services
entered into by that agency, at any time, when he or she discovers information
that calls into question the responsibility of Contractor. In the event of such
suspension, Contractor shall be given written notice outlining the particulars of
such suspension. Upon issuance of such notice, Contractor must comply with
the terms of the suspension order. Activity under this Agreement may resume
at such time as the Commissioner, the head of a State agency, or their designee
issues a written notice authorizing a resumption of performance under this
Agreement.
Upon written notice to Contractor and a reasonable opportunity to be heard with
appropriate State officials or staff, (i) the Commissioner or his or her designee
may terminate this Agreement, and (ii) the head of a State agency or his or her
designee may terminate services entered into by that agency, at Contractor’s
expense where Contractor is determined by the Commissioner, the head of a
State agency, or their designee to be non-responsible. In such event, the
Commissioner, the head of a State agency, or their designee may complete the
contractual requirements in any manner he or she may deem advisable and
pursue available legal or equitable remedies for breach.
In no case shall such termination of this Agreement by the State be deemed a
breach thereof, nor shall the State be liable for any damages for lost profits or
otherwise that may be sustained by Contractor as a result of such termination.
52.
COOPERATION WITH AUDITS
Contractor shall provide reasonable cooperation to the Applicable Agency with
respect to any audits conducted under this Agreement, including providing
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adequate workspace to the extent feasible; provided, that the Applicable Agency
agrees that access to Contractor’s facilities shall be conditioned upon the
Applicable Agency’s compliance with Applicable Law and Contractor’s reasonable
site security policies and procedures.
Applicable Agency
means, on an
individual basis, the Office of General Services or the Authorized User, the
Federal funding agency, the Comptroller General of the United States, or any of
their authorized representatives.
53.
NOTICES
a.
Delivery and Receipt. Unless otherwise explicitly provided for herein, all
notices hereunder must be in writing and sent by hand delivery; or by U.S.
postal service, such as first class mail or third class mail, postage prepaid; or
by expedited mail courier service; or by email or facsimile transmission.
Notices are deemed received and effective as follows: If hand-delivered, upon
delivery; if sent by e-mail or facsimile transmission, upon sending; if mailed,
upon the earlier of (i) receipt or (ii) three days after being deposited in the mail
if mailed by first class postage or ten days after being deposited in the mail if
mailed by third class postage. If the addressee provided for below rejects or
otherwise refuses to accept the notice, or if the notice cannot be delivered
because of a change in a postal or electronic address for which no notice was
appropriately given, then the notice is effective upon the rejection, refusal or
inability to deliver.
b.
Electronic Communications. We may provide any notice, including any notice
under section 4.a., as well as any statement, or other communication related
to this Agreement to you by any lawfully permitted electronic means,
including by (i) transmission to an electronic address (e.g., email), (ii) posting
it on an American Express website, or (iii) making it available to you on an
American Express website through a link provided on a statement, other
notice or communication. Notices, statements and other communications
sent to you electronically will be effective the earlier of when (i) we send it to
you, or (ii) we send or otherwise provide you with notice that the notice,
statement or communication has been posted on an American Express
website. You agree that we may use any electronic address you, or any of your
authorized representatives, provide to us in the course of our relationship
with you. You will provide us with your current electronic address and notify
us promptly with any updates to that address so we may continuously and
effectively communicate with you. It is your responsibility to access and retain
copies of all electronic notices, statements or communications that we provide
you. If you ask us for a paper copy of an electronically delivered notice,
statement or communication, we may charge you a fee for providing the copy.
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c.
Our Notice Address. Unless we notify you otherwise, you shall send notices
under sections 4.a and 4.b to us at:
American Express Travel Related Services Company, Inc.
P.O. Box 299051
Fort Lauderdale, Florida 33329
Attn: Department 87
E-mail:
American.Express.Contract.Keying@aexp
.com
Fax: (602) 744-8413
Tel: (800) 528-5200
With a copy to:
American Express Travel Related Services Company, Inc.
3 World Financial Center
200 Vesey Street, 49
th
Floor
New York, New York 10285
Attn: General Counsel’s Office/Merchant Services Practice Group
d.
Your Notice Address. Unless you notify us otherwise, we shall send notices
to you at:
New York State Offices of General Services
Procurement Services
Corning Tower – 38
th
Floor
Empire State Plaza
Albany, New York 12242
Attention: EVTA Administrator
Email:
ogs.sm.ps
_
sw_evta@ogs.ny.gov
e.
Your Contact Information. You must notify us immediately of any change to
your contact information, including without limitation the contact
information and address described in sections 4.a and 4.b above. Your failure
to provide such updated contact information may result in a delay of the
delivery of notices, statements and communications herein referenced;
however, it will not impact our ability to give proper legal notice under this
provision or the legal effectiveness of same.
54.
SECURITY OF CARDHOLDER DATA
The Contractor and/or any subcontractors responsible for storing, processing,
or transmitting cardholder data must comply with all applicable Payment Card
Industry Data Security Standards (PCI-DSS) throughout the term of the
Contract. The State acknowledges that as of the effective date of this Agreement,
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as a payment brand, Contractor is not a service provider as that term is defined
by PCI DSS.
American Express places a top priority on safeguarding Card Member
information and, as a regulated financial services institution, adheres to robust
legal requirements by U.S. and international regulators, including the Gramm
Leach Bliley Act (GLBA), the EU General Data Protection Regulation (GDPR), and
the
Federal
Financial
Institutions
Examinations
Council
(“FFIEC”)
guidelines. The FFIEC is composed of the primary banking regulators, including
the Federal Reserve Board of Governors (FRB), the Federal Deposit Insurance
Corporation (FDIC), the Office of the Comptroller of the Currency (OCC) and the
Consumer Financial Protection Bureau (CFPB) among other banking
regulators. PCI-DSS does not address all of the legal and regulatory security
requirements that American Express must comply with. As such, American
Express’s information security standards address specific concerns for our
industry.
55.
CAPTIONS
The captions contained in this Agreement are intended for convenience and
reference purposes only and shall in no way be deemed to define or limit any
provision thereof.
56.
INCORPORATION BY REFERENCE
The unnumbered paragraphs of this Agreement that begin with the word
“Whereas” and the recitations contained therein are expressly incorporated by
reference and constitute a part of this Agreement.
57.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute the
same Agreement. Any signature page of any such counterpart, or any electronic
reproduction thereof, may be attached or appended to any counterpart to
complete a fully executed counterpart of this Agreement. The signature of all
parties need not appear on the same counterpart and delivery of an executed
counterpart signature page by facsimile or by attaching to an email is as effective
as executing and delivering the Agreement in the presence of the other party.
58.
SEVERABILITY
In the event that any one or more of the provisions of this Agreement shall for
any reason be declared unenforceable under the laws or regulations in force,
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such provision will have no effect on the validity of the remainder of this
Agreement, which shall then be construed as if such unenforceable provision
had never been written and was never contained in this Agreement.
59.
ENTIRE AGREEMENT
This Agreement and any referenced appendices and attachments constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings of the parties, whether
written or oral, with respect to the subject matter hereof. No statement, promise,
condition, understanding, inducement or representation, oral or written, express
or implied that is not contained herein shall be binding or valid. Except as
specifically indicated in this Agreement, any amendment to the Agreement must
be in writing executed by the parties and approved by the State Comptroller
(except that an e-mail or other electronic communication does not constitute
such a signed writing for purposes of amending the Agreement), provided that
American Express may change the Merchant Regulations pursuant to the
provisions of section 10 above.
[signatures appear on next page]
APPROVED
DEPT. OF AUDIT & CONTROL
Nov 16 2021
James M. Iwaneczko
FOR THE STATE COMPTROLLER
