2018-205-E Health - Elavon credit card fees

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DocuSign Envelope ID: 7BAFA4EF- DE91- 4D64- A904- 630EDDFF2843 (Orange County, NC) SECOND ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT 05.14.18 SECOND ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENTANSTITUTIONAL COMPANIES This Second Addendum to the Terms of Service for Government/Institutional Companies ( "Second Addendum ") is entered into as of the Second Addendum Effective Date by and among Orange County, NC on behalf of its Health Department ( "Company "), Elavon, Inc. ( "Elavon ") and Member (collectively the "Parties "). The Parties entered into the Terms of Service ( "TOS "), as amended by the Addendum to the Terms of Service for Government/Institutional Companies ( "Addendum;" collectively with the TOS the "Agreement ") and desire to amend it as follows: 1. Capitalized terms used and not otherwise defined in this Second Addendum shall have the meanings ascribed to them in the Agreement or the Operating Guide. Except as specifically set forth in this Second Addendum, all terms and conditions of the Agreement remain in full force and effect as of the Second Addendum Effective Date. 2. Company is agreeing to the Terms of Service dated January 2018. 3. Section 4.1 Security Interests is deleted. 4. Section 4.2(a) Reserve Account is hereby deleted and replaced with the following: (a) Establishment. If a Reserve Event occurs, Elavon may establish a Reserve Account to provide a source of funds to pay Elavon for any amounts owed by Company. The Reserve Account will be maintained with sums sufficient to satisfy Company's current and future obligations as determined by Elavon. Elavon will have sole control of the Reserve Account. Elavon may, at any time, require that the amount on deposit in the Reserve Account be increased. Company's settlement funding may be directed to a Reserve Account if Company's websites are not in compliance with the Payment Network Regulations. The following will constitute "Reserve Events ": (i) Fraudulent activity in any monthly period that equals or exceeds I % of Company's average monthly volume over the preceding 12 -month period; (ii) Chargebacks in any monthly period that equal or exceed I% of the total dollar value of incoming items to Elavon; (iii) Elavon's reasonable belief that Company, if not approved by Elavon to engage in delayed delivery transactions, has accepted deposits but has not delivered the goods or services; (iv) The commencement of a Bankruptcy Proceeding by or against Company; (v) Termination of the Agreement for any reason or the occurrence of an event giving Elavon the right to terminate the Agreement; (vi) Nonpayment of amounts owed by Company to Elavon; (vii) Fines, assessments, or charges imposed or reasonably expected to be imposed by the Payment Networks; (viii) The occurrence of a material adverse change in Company's financial condition; and (ix) Assignment of the Agreement by Company in violation of Section 18.5 of the Agreement. 5. Section 5.2(a) is amended to add the following: (iv) Elavon acknowledges that Company is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of Company's obligations under this Agreement, then this Agreement shall expire without penalty to Company upon 60 days prior written notice (if feasible) to Elavon of the unavailability and non- appropriation of public funds. It is expressly agreed that Company shall not activate this non - appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the Company's statutory authority, mandate and/or mandated functions, by state or federal legislative or regulatory action, which adversely affects Company's authority to continue its obligation under this Agreement, then this Agreement shall terminate without penalty to Company upon 60 days prior written notice (if feasible) to Elavon of such limitation or change in Company's legal authority. In the event of any termination, Company remains responsible for items received post - termination that relate to Transactions received prior to termination (for example, Chargebacks).