Bevo Bucks Merchant Agreement
This Bevo Bucks Merchant Agreement (the "Agreement") is made and entered into effective
as of
, 2013 between The University of Texas at Austin ("University"), an agency of
The State of Texas with offices located at 200 W. Dean Keeton Street, Austin, Texas 78712
and
(“Merchant”), a
[corporation, partnership, or other entity] with offices
located at
.
RECITALS
A.
University offers to its students at The University of Texas at Austin through its
Division of Housing and Food Service (“DHFS”) an optional discretionary spending
program in which students elect to participate. This optional program is hereinafter
referred to as “Bevo Bucks.”
B.
Under the Bevo Bucks program, a University student who has established a Bevo
Bucks debit account is entitled to pay for purchases of food and other goods and
services at various authorized locations on and off the University campus by
presenting his or her student identification card that has been activated as a Debit
Account card (as hereinafter defined).
C.
Merchant operates one or more businesses and desires to participate in the Bevo
Bucks programs by honoring the Debit Account card for Bevo Bucks programs for
purchases of Merchant’s products delivered on campus or on Merchant Premises.
D.
University desires to authorize and enable Merchant to (i) accept the Debit Account
card for the Bevo Bucks programs in payment for sales on campus and at Merchant’s
premises and (ii) receive reimbursement, less a Service Fee, through the Bevo Bucks
program.
TERMS AND CONDITIONS OF AGREEMENT
In consideration of the foregoing and the mutual promises and covenants hereinafter
contained, University and Merchant agree as follows:
1.
DEFINITIONS AND TERM
1.1.
Definitions. As the terms are used in this Agreement, (i) "business day" is
defined by the official calendar of University, and “daily” refers to a business
day; (ii) “Debit Account card” “means a University student identification card
activated to entitle the owner to make purchases under the Bevo Bucks
program; and (iii) “cardholder" means the person whose name and photograph
are displayed on the face of a Debit Account card.
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1.2.
2.
Term. This Agreement is effective beginning on the date first set forth above
and expiring on August 31,2013. The term of the Agreement shall be
automatically renewed for a one-year period, beginning on September 1,
2013 and expiring August 31, 2013, unless either University or Merchant
notifies the other in writing sixty (60) days prior to the expiration date that the
Agreement will not be renewed. Either party may elect not to renew this
Agreement for any reason or no reason without penalty, except that any
remaining obligations incurred during the term of the Agreement must be
fulfilled by the obligated party.
RESPONSIBILITIES OF MERCHANT
2.1.
Equipment, Data lines, and Installation Costs for Merchant accepting Debit
Account payment for deliveries to on-campus locations. Merchant will not be
required to furnish any special equipment or data lines in connection with
processing Debit Account payments for Merchant’s sales delivered to a
University Residence Facility.
2.2.
Acceptance of Debit Account card for sales at Merchant premises. Merchant
agrees, under the terms and conditions of this Agreement, to accept the Debit
Account card as payment for products and services provided to cardholders in
person at Merchant premises.
2.3.
Equipment, Data lines, and Installation Costs for Merchant accepting Debit
Account payment for sales at Merchant premises.
2.3.1
Merchant shall be responsible for payment for the installation of all
equipment required for participation in the Bevo Bucks program. The
equipment required for participation in the Bevo Bucks program varies
by location and participation type, but may include a "Reader", defined
as any device which can read the Debit Account card and is connected
to the University Network, including but not limited to CBord standalone debit terminals for vending or total sales, CBord cash registers,
computers with Internet Browser software and access to the Web and
the equipment required for connection to the software supporting the
University’s Network for the and Bevo Bucks program.
2.3.2
Merchant will provide electrical power, telephone line and internet
service for any reader located outside University’s facilities, paper and
ribbons for printers, and any replacement, service or repair of
equipment for connection to University’s Network for the Bevo Bucks
program. Merchant must obtain prior approval in writing from DHFS
for use of any equipment that varies from the standard CBord endorsed
equipment. DHFS will determine the compatibility of Merchant’s
equipment and inform the Merchant of the fees involved for
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installation of and connection of any replacement or modified
equipment. If Merchant attempts to connect to the University‘s
Network any equipment not previously approved in writing by DHFS,
then University may in its discretion terminate this Agreement
immediately upon written notice to Merchant.
2.3.3
Merchant shall comply with operational standards established from
time to time by University. These standards shall include, but are not
limited to, (i) requiring Merchant to maintain a certain percentage of
the check-out lines (cash registers) in Merchant’s premises with the
capability to handle payments through the Debit Account card, to
maintain adequate service for cardholders; (ii) requiring Merchant to
maintain equipment that makes available (both on-screen and on a
written receipt, if requested) the following minimum information for a
cardholder at the time of a transaction: the date, time, location, and
purchase amount of the transaction.
2.4.
Service Fee and Payment Terms. Merchant shall pay to University a service
fee of six percent (6%) of gross Bevo Bucks sales for products delivered oncampus and sold off-campus at Merchant’s premises ("Service Fee"). The
Service Fee shall be deducted by University from the total remittance paid to
Merchant on its sales that were paid for with Bevo Bucks’.
2.5.
Card Inspection. When a Debit Account card is presented to Merchant as
payment, prior to accepting payment thereby, Merchant must (i) verify by
visual inspection that the person presenting a Debit Account card is in fact the
cardholder pictured in the photo on that card; (ii) verify that the card is not
visibly altered or mutilated; (iii) verify that the Identification Number on the
card matches that printed on the receipt; (iv) verify that the card is signed in
the same name as the name printed on the card; (v) complete a Universityapproved payment form and verify that the cardholder’s signature on the form
reasonably matches the signature on the card; (vi) verify that Merchant has not
been notified of the cancellation of the card. If University determines that
Merchant has accepted a lost or stolen card, University shall not reimburse
Merchant for that purchase. Merchant shall accept no payment by Bevo
Bucks unless the cardholder presents the card in person at the time of
purchase. If Merchant comes into possession of a Debit Account card that is
lost or otherwise unclaimed, Merchant shall immediately deliver the card to
University in accordance with the instructions printed on the back of the card.
2.6.
Signatures on Payment Forms. In addition to the card acceptance procedures
specified in this Agreement, Merchant shall establish and maintain such
additional requirements with respect to signatures on payment forms that
Merchant considers appropriate. However, a payment form without a
signature will not be considered as proof of a Bevo Bucks transaction and will
not be accepted as valid in any disputes between Merchant and University.
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2.7.
Bevo Bucks Off-line. If, at any time, the terminal at a University Residence
Facility indicates an off-line status or otherwise is operating improperly,
Merchant shall not accept any Bevo Bucks payments until University's
equipment is restored to proper on-line status. If Merchant believes that Bevo
Bucks equipment is not operating properly, Merchant will immediately notify
the University Systems Analyst technical support service at 471-6318 on
Monday through Friday between 8:30 a.m. and 4:30 p.m.
2.8.
Inspection and Audit. University and the State Auditor shall have the right, at
their sole expense and during normal business hours, to inspect Merchant’s
facilities and business records for the purposes of auditing sales reported to
University and for any other purpose related to this Agreement.
2.9.
Use and Confidentiality of Information. Merchant shall not use any
information gathered by or made available to Merchant about University’s
students, faculty or staff as a result of Merchant's participation in the Bevo
Bucks program for any purpose other than those required for the acceptance
and processing of Debit Account transactions. The restricted information
referred to in the preceding sentence shall include, but is not limited to
student, faculty or staff identification numbers, account information, names,
classification, phone numbers, and addresses.
2.10.
Credits and Returns. Merchant may correct an operator error ("Corrections")
and make adjustments for products returned for full value ("Returns") by
filing a refund slip at the time of the purchase error in accordance with the
procedures described in this subsection. Refund slips must be signed by both
the customer and the Merchant's representative and sent to the University’s
DHFS Accounting Office. University will subtract all credits for Corrections
and Returns for the month from the debits for the month to determine the
amount owed to Merchant. Merchant shall not exchange cash for a return of
merchandise purchased with Bevo Bucks’ University will not permit, and
Merchant shall not attempt to process a credit to Bevo Bucks for any reason
except Corrections and Returns.
2.11.
Prohibited Transactions. Merchant shall not accept a Debit Account card for
(i) cash disbursements; (ii) any cost or fee that is beyond the normal basic fee
for the product or service delivered; (iii) any product that will be resold; (iv)
sales made under a different trade name or business affiliation other than the
name of Merchant as shown on this Agreement; (v) sales by a third party; or
(vi) amounts that do not represent a bona fide sale of products or services by
Merchant.
2.12.
No Fees or Restrictions. Merchant shall not charge any fee to a cardholder for
making a purchase with Bevo Bucks’ Except for the restrictions specified in
this Agreement, Merchant shall not impose any restriction or condition on the
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use of a Debit Account card that is not imposed equally on the use of other
similar payment methods. Merchant may allow cardholders making purchases
with Bevo Bucks to take advantage of any discounts, special promotions
and/or sales, or coupons available to the general public.
3.
2.13.
Taxes. Merchant shall be responsible for the payment of all taxes, excises,
payroll deductions, fees, fines, penalties, or other payments required by
federal, state, or municipal law, ordinance, or regulation in relation to
Merchant's performance of its obligations under this Agreement. Merchant
shall collect and pay promptly and before delinquency all taxes imposed under
current or subsequent law upon sales of taxable goods or services in
performance of this Agreement.
2.14.
Quality of Products and Services. Merchant warrants to University with
respect to all sales paid for by acceptance of a Debit Account card that (a) all
products and services sold to customers by Merchant shall conform in all
respects to the standards established by applicable local, state, and federal
laws, regulations, and ordinances; and (b) all food, beverages, and other
consumable products sold to customers by Merchant shall be only first quality
products that are wholesome, pure, and suitable for human consumption, and
that have been stored, prepared, and handled with due regard for sanitation.
2.15.
Approvals from University. Except as otherwise specified in this Agreement,
in every circumstance in which an approval or consent from University is
required under this Agreement, Merchant must obtain that approval or consent
from University’s Vice President and Chief Financial Officer, or the successor
in function.
RESPONSIBILITIES OF UNIVERSITY
3.1.
Program Support. University will provide certain services for the Bevo Bucks
programs, which shall include, but shall not be limited to (i) managing an
office to open and close contract accounts and accept deposits; (ii) answering
questions about the program; (iii) managing the databases of Debit Accounts
and Merchant accounts; (iv) promoting and marketing the Bevo Bucks
program; (v) having available 24-hour emergency desks to handle reports of
lost or stolen cards; and (vi) maintaining the CPU and software to operate the
Bevo Bucks program.
3.2.
Equipment Maintenance and Repair of University Equipment. University shall
be responsible for maintenance and repair of the University's central
equipment, including the terminals and printers at University Residence
Facilities, remote communication hardware, software and servers. University
shall have no responsibility for the maintenance or repair of equipment
located off the University’s campus.
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3.3.
Daily Reports. University shall provide to Merchant a report of Debit
Account activity each business day by means of an electronic transmission to
the e-mail address designated in writing by Merchant.
3.4.
Remittance to Merchant. University shall receive and administer deposits
received from cardholders for the Bevo Bucks program. University will
compute the amount of storage value credit sales by Merchant through the
Bevo Bucks program on a monthly basis and will mail to Merchant a check
for the amount due to Merchant under this Agreement within twelve (12)
business days following the end of the calendar month in which the sales
occurred. Merchant will have five (5) business days from receipt of the daily
reports to review and question the sales figures as reported in the daily reports
prepared by University, after which those sales figures shall be deemed
accepted by Merchant. University shall have the right to withhold amounts
from the monthly remittance to Merchant to comply with provisions of this
Agreement and all federal and state laws and regulations.
3.5.
Disclaimer of Warranties and Liability. THE UNIVERSITY OF TEXAS AT
AUSTIN MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, CONCERNING THE EQUIPMENT OR
SERVICES PROVIDED BY THE UNIVERSITY OF TEXAS AT AUSTIN
UNDER THIS AGREEMENT. THE UNIVERSITY OF TEXAS AT
AUSTIN SHALL NOT BE LIABLE FOR ANY COSTS, FEES, DAMAGES
INCLUDING DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS), OR OTHER LIABILITY
WITH RESPECT TO ANY CLAIM BY MERCHANT OR ANY THIRD
PARTY ON ACCOUNT OF OR ARISING FROM THIS AGREEMENT.
4.
BILLING INQUIRIES
If University requests information from Merchant relating to a transaction inquiry or
dispute, Merchant shall provide the requested information to University within five
(5) business days after the request. If Merchant fails to timely provide the requested
information, University shall have the right, in its sole discretion, to cancel the
transaction(s) in question and deduct the amounts of such transactions from the next
monthly remittance to Merchant.
5.
RECORD RETENTION
Merchant and University shall maintain a record of every transaction covered under
this Agreement for a minimum of three (3) years from the date of each transaction.
6.
TERMINATION PRIOR TO EXPIRATION DATE
Either University or Merchant shall have the right to terminate this Agreement prior
to expiration for any reason or no reason by providing no less than thirty (30) days
written notice to the other party. A party terminating this Agreement pursuant to this
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Section shall have no responsibility or liability to the other party for any costs
incurred as a result of the early termination of this Agreement; however, such a
termination by either party shall not affect any right or remedy of either party under
this Agreement that has matured or accrued at the time of termination.
7.
CHANGING THIS AGREEMENT
University shall have the right to change any portion of this Agreement at any time by
written notice to Merchant at least thirty (30) days in advance of the effective date of
such change. If any change is unacceptable to Merchant, then Merchant shall have the
right to terminate this Agreement in accordance with Section 6 hereof.
8.
ASSIGNMENT
Merchant shall not assign or transfer its interest under this Agreement in whole or in
part without prior written consent of University. Any attempt to assign or transfer this
Agreement without prior written consent of University shall render this Agreement
void. Consent by University to any assignment or transfer shall not constitute a
waiver of the necessity to obtain consent for any subsequent assignments or transfers.
Each assignee or transferee of Merchant’s interest in this Agreement shall assume and
be deemed to assume all obligations under this Agreement, and Merchant shall
remain jointly and severally liable with its assignee or transferee for payment of any
sums due to University hereunder and for performance of all terms and conditions
contained herein. Notwithstanding the fact that University has previously approved an
assignment, no assignment shall be binding on University until such assignee or
Merchant delivers to University a copy of such assignment, along with an instrument
in recordable form that contains a covenant of assumption by the assignee.
9.
INDEMNIFICATION
Merchant shall indemnify, defend, and hold harmless The University of Texas
System, its Board of Regents, The University of Texas at Austin, and their respective
officers, agents, and employees (the “Indemnified Parties”) from and against any
claims, loss, liability, damage, cost and expense, including but not limited to
reasonable attorneys’ fees, for injury, death, loss or damage of whatever nature to any
person, property or any other claim by Merchant or its officers, employees, agents,
customers, licensees, invitees, or any other person, firm or corporation resulting from
the use of and participation in the Bevo Bucks program (collectively referred to as the
“Claims”). Merchant shall assume on behalf of the Indemnified Parties and conduct
with reasonable diligence and in good faith the defense of all Claims against the
Indemnified Parties, whether or not Merchant is joined therein; provided, however,
without relieving Merchant of its obligations under this Section, an Indemnified
Party, at its election, may participate in the defense of any or all of the Claims
through the Attorney General of Texas or with attorneys and representatives of its
own choosing.
DEFAULT
If Merchant fails to perform any of the obligations imposed upon Merchant by this
Agreement or by law, and this failure is not cured within ten (10) after written notice
from University, then Merchant is in default and University may exercise any and all
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rights as may be available to University under law or equity, including but not limited
to, the right to terminate this Agreement in whole or in part; the right to withhold
payments to Merchant until Merchant complies; and the right to recover damages
from Merchant occasioned by its default. If University chooses not to terminate this
Agreement upon learning of Merchant's default and chooses to continue to perform
under this Agreement, such continuation shall not be deemed to be a waiver of
Merchant’s default by University.
11.
ADVERTISING
Merchant shall not advertise any connection with The University of Texas System, its
Board of Regents, or The University of Texas at Austin, nor use the University's
name, symbols, or other identifying marks or property, nor make any representation,
either express or implied, as to the University's promotion or endorsement of
Merchant or Merchant's business, unless Merchant has previously received specific
written permission from the University in each instance. Merchant shall obtain
permission from University as specified in this Section for any signs or
advertisements by which Merchant wishes to identify its acceptance of the Debit
Account card, and Merchant shall use any permitted names or marks owned by
University only in the form designated by University. University’s approval of any
activity described in this Section must be obtained in writing in advance from the
Director of the Office of Trademark Licensing; The University of Texas at Austin;
CBA Building - Room 6.476; 2100 Speedway; Austin, Texas 78712-1111; FAX #
512-232-7080. In any instance for which University grants permission for an activity
described in this Section, Merchant shall strictly comply with all restrictions and
conditions imposed by University on such activity. Upon the expiration or earlier
termination of this Agreement, Merchant shall immediately remove from its premises
and from its advertising materials all signs or other identification or references to
Bevo Bucks and all displays of names or trademarks owned by University.
12.
NOTICES
Any notice required by this Agreement shall be given either by University or
Merchant to the other and shall be in writing and sent by certified mail, return receipt
requested, and shall be deemed to be given when received and shall be addressed to
University or Merchant at their respective address or addresses as follows:
If to University:
Director of Housing and Food Service
The University of Texas at Austin
200 West Dean Keeton St.
Austin, Texas 78705
with a copy to:
Kevin P. Hegarty
Vice President and Chief Financial Officer
The University of Texas at Austin
Main Building Room 102
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Austin, Texas 78713
If to Merchant:
or such other addresses for which either party may give notice to the other party.
13.
SUCCESSORS AND ASSIGNS
Any term or condition of the Agreement that inures to the benefit of or is binding
upon Merchant shall also inure to the benefit of and be binding upon the successors
and permitted assigns of Merchant.
14.
ENTIRE AGREEMENT AND AMENDMENT
This Agreement constitutes the entire agreement between University and Merchant
and supersedes all prior agreements, if any, between University and Merchant in
connection with the subject matter of this Agreement. Any subsequent amendment,
addendum, modification, or alternation to this Agreement shall not be effective unless
reduced to writing and signed by both parties; excepting only those changes in the
Agreement effected by University pursuant to its rights specified in Section 7 hereof.
15.
COMPLIANCE WITH LAWS
Merchant shall comply with all applicable federal, state, county and local laws,
regulations, and ordinances with respect to Merchant's business operation and
Merchant’s participation in the Bevo Bucks program.
16.
RELATIONSHIP OF PARTIES
Nothing contained in this Agreement shall be deemed or construed by the parties or
by any third party to create the relationship of principal and agent or of partnership or
of joint venture or of any association between University and Merchant and neither
the provisions contained in this Agreement or any acts of the parties shall be deemed
to create any such relationship.
17.
SEVERABILITY
If any provision of this Agreement or any application thereof shall be invalid or
unenforceable, the remainder of this Agreement and any application of such provision
shall not be affected thereby.
18.
WAIVER
No failure by either party to insist upon the strict performance by the other of any
term or condition of the Agreement or to exercise any right to remedy contingent
upon a breach thereof shall constitute a waiver of any such breach or of such term or
condition of this Agreement and the term or condition shall continue in full force and
effect with respect to any then existing or subsequent breach.
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19.
FORCE MAJEURE
University and Merchant agree that if by reason of strike or other labor disputes, civil
disorder, inclement weather, acts of God or other unavoidable cause either University
or Merchant is unable to completely perform its obligations under this Agreement,
then such nonperformance will not be considered a breach of the Agreement. If
Merchant finds that it cannot completely perform under the terms of this Agreement,
Merchant shall immediately notify University in writing as to the cause and expected
duration of nonperformance. Notwithstanding the provisions of the preceding
sentence, in the event of Merchant’s prolonged or frequent nonperformance,
University shall have the right to designate such event as a failure to perform and
exercise University’s rights under Section 10 for Merchant’s failure to perform.
20.
GOVERNING LAW
This Agreement is performable in Travis County, Texas and shall be governed by and
in accordance with the laws of the State of Texas.
21.
STATUTORY COMPLIANCE REQUIREMENTS
21.1.
Representations and Warranties by Merchant. If Merchant is a corporation or
a limited liability company, Merchant warrants, represents, covenants, and
agrees that it is duly organized, validly existing and in good standing under
the laws of the state of its incorporation or organization and is duly authorized
and in good standing to conduct business in the State of Texas, that it has all
necessary power and has received all necessary approvals to execute and
deliver the Agreement, and the individual executing the Agreement on behalf
of Merchant has been duly authorized to act for and bind Merchant.
21.2.
Franchise Tax Certification. A corporate or limited liability company
Merchant certifies that it is not currently delinquent in the payment of any
Franchise Taxes due under Chapter 171 of the Texas Tax Code, or that the
corporation or limited liability company is exempt from the payment of such
taxes, or that the corporation or limited liability company is an out-of-state
corporation or limited liability company that is not subject to the Texas
Franchise Tax, whichever is applicable.
21.3.
Eligibility Certification. Pursuant to Section 2155.004, Texas Government
Code, Merchant certifies that the individual or business entity named in this
Agreement is not ineligible to receive the award of or payment under this
Agreement and acknowledges that this Agreement may be terminated and
payment withheld if this certification is inaccurate.
21.4.
Texas Family Code Child Support Certification. Pursuant to Section 231.006,
Texas Family Code, Merchant certifies that it is not ineligible to receive the
award of or payments under this Agreement and acknowledges that this
Agreement may be terminated and payment may be withheld if this
certification is inaccurate.
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22.
DISPUTE RESOLUTION
To the extent that Chapter 2260 of the Texas Government Code, as it may be
amended from time to time ("Chapter 2260"), is applicable to this Agreement and is
not preempted by other applicable law, the dispute resolution process provided for in
Chapter 2260 shall be used, as further described herein, by University and Merchant
to attempt to resolve any claim by Merchant alleging a breach of contract by
University:
(1)
Merchant’s claims for breach of this Agreement that the parties cannot
resolve pursuant to other provisions of this Agreement or in the ordinary
course of business shall be submitted to the negotiation process provided in
subchapter B of Chapter 2260. To initiate the process, Merchant shall submit
written notice, as required by subchapter B of Chapter 2260, to University in
accordance with the notice provisions in this Agreement. Merchant's notice
shall specifically state that the provisions of subchapter B of Chapter 2260 are
being invoked, the date and nature of the event giving rise to the claim, the
specific contract provision that Merchant claims was breached by University,
the amount of damages Merchant seeks, and the method used to calculate the
damages. Compliance by Merchant with subchapter B of Chapter 2260 is a
mandatory prerequisite to Merchant's right to file a contested case proceeding
under subchapter C of Chapter 2260. The Vice President and Chief Financial
Officer, or such other officer as may be designated from time to time by the
President of University by written notice thereof to Merchant in accordance
with the notice provisions in this Agreement, shall examine Merchant's claim
and any counterclaim and shall negotiate with Merchant in an effort to resolve
such claims.
(2)
If the parties are unable to resolve a claim for breach of this
Agreement through the negotiations specified in subsection (1) of this Section,
then the contested case process provided in subchapter C of Chapter 2260 is
Merchant’s sole and exclusive process for seeking a remedy for any and all
claims for breach of this Agreement by University.
(3)
Compliance with the contested case process provided in subchapter C
of Chapter 2260 is a mandatory prerequisite to seeking consent to sue from
the Legislature under Chapter 107 of the Texas Civil Practices and Remedies
Code. The parties hereto specifically agree that (i) neither the execution of this
Agreement by University nor any other conduct, action or inaction of any
representative of University relating to this Agreement constitutes or is
intended to constitute a waiver of University's or the state's sovereign
immunity to suit, and (ii) University has not waived its right to seek redress in
the courts.
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The submission, processing and resolution of Merchant’s claim for breach of contract shall
be governed by the rules adopted by the Texas Attorney General pursuant to Chapter 2260,
as currently effective, hereafter enacted, or subsequently amended.
University and Merchant agree that any periods set forth in this Agreement for notice and
cure of defaults are not waived, delayed, or suspended by Chapter 2260 or by this Section.
IN WITNESS WHEREOF, the authorized representatives of University and Merchant
have executed this Agreement to be effective as of the day and year first written above.
THE UNIVERSITY OF TEXAS AT AUSTIN
By: __________________________________
Date Signed: __________________
MERCHANT:
_________________________________
By: _________________________________
Date Signed: ___________________
Name:
Title:
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