Bevo Bucks Merchant Agreement
This Bevo Bucks Merchant Agreement (the "Agreement") is made and entered into
effective as of
, 2016 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, 2016. The term of the Agreement shall be
automatically renewed for a one-year period, beginning on September 1, 2016
and expiring August 31, 2017, 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 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 installation
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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 checkout 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 University-approved
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. The University will not permit this.
The 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 use
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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 Section
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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) business days after
written notice from University, then Merchant is in default and University may exercise
any and all rights as may be available to University under law or equity, including but
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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:
Vice President and Chief Financial Officer
The University of Texas at Austin
Main Building Room 102
Austin, Texas 78713
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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.
19.
FORCE MAJEURE
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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.
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.
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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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