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Pirate's Gold - Sample Agreement

MERCHANT AGREEMENT

THIS AGREEMENT, made and entered into this ______ day of _______, 2007 (“Effective Date”) is between Seton Hall University, on behalf of its Student Affairs & Enrollment Services, University Center, 400 South Orange Avenue,, South Orange, New Jersey 07079 and MERCHANT NAME, doing business as BUSINESS NAME, and having a place of business BUSINESS ADDRESS ("Merchant").

RECITALS:

WHEREAS, commencing July 1, 2005, STUDENT AFFAIRS & ENROLLMENT SERVICES offered to its faculty, staff and students a discretionary spending program which is accessible through an automated debit card privilege access control system (the "Pirate’s Gold Program");

WHEREAS, under the Pirate’s Gold Program, faculty, staff and students are able to purchase goods and services at various locations;

WHEREAS, Merchant desires to provide such goods and services to the University's faculty, staff and students through the Pirate’s Gold Program;

NOW, THEREFORE, in consideration of the foregoing, the parties mutually agree as follows:
 

1. TERM.

• This Agreement shall commence on the Effective Date of ____________________, and shall terminate on __________________, (Initial Term) unless sooner terminated or extended as provided herein.
  
  Initial term is for a period of two years. Agreement, at that time, can be renewed for another two year period upon the written request of the Merchant and the acknowledgement of Student Affairs and Enrollment Services. Each two year anniversary date will bring about either the renewal of said Agreement or its termination.
  
  Notwithstanding the foregoing, both Student Affairs & Enrollment Services and Merchant shall have the right to terminate this Agreement for any reason, at any time during the Initial Term by providing the other party with thirty (30) days prior written notice of such termination. Termination pursuant to this provision shall be effective thirty (30) days after the providing of such notice by the terminating party upon the non-terminating party. In the event either party to this Agreement exercises its’ right to terminate this Agreement as herein provided, as of the date effective of termination, neither party shall have any further financial obligation or liability hereunder.
   

2. RESPONSIBILITIES OF MERCHANT.

• A. Equipment and Data Lines. During the Initial Term and any Renewal Term, Merchant agrees to furnish, at its costs and expense, the equipment and phone lines (VeriFone Tranz 380x2), as necessary or required to interface with the Pirate’s Gold system. The SHU Card Office will program the VeriFone readers to work with the Pirate’s Gold system for a one-time charge of $250 per reader. For equipment, Tranz 380x2, specifications see Appendix A. Merchant is responsible for the maintenance, repair and operations of the Tranz 380x2 readers.
   

• B. Fees and Payment Terms. During the Initial Term and any Renewal Term, Merchant agrees to pay to Student Affairs & Enrollment Services a service charge equal to 4% monthly or 5% weekly of gross Pirate’s Gold debit card transaction sales at Merchant's business (“Service Charge”) in the manner provided hereinafter. At the beginning of the Agreement terms the Merchant will have the ability to set up the how payments are to be made, whether weekly or monthly.
  
  Student Affairs & Enrollment Services will pay Merchant on a monthly basis for the Pirate’s Gold debit card transactions attributable to Merchant’s business, less the Service Charge, fifteen (15) days after the Merchant provides SHU ID Office with a written statement evidencing the valid Pirate’s Gold debit card transactions attributable to Merchant’s business. These will be reconciled with the charges that are processed on the Blackboard Transaction System. Notwithstanding the foregoing, Student Affairs & Enrollment Services shall not be responsible or obligated to pay Merchant for any Pirate’s Gold debit card transactions which are prohibited hereunder, or which are processed by Merchant on a stolen or invalid Pirate’s Gold debit card.
   

• C. Card Inspection. Merchant will verify by visual inspection that the person in the possession of the SHU ID is the person pictured in the photo on that card prior to accepting a Pirate’s Gold payment (or before delivering the food, in the case of deliveries). Merchant acknowledges and agrees that Student Affairs & Enrollment Services shall not be liable for payment to Merchant for any Pirate’s Gold transactions consummated by Merchant on a lost or stolen SHU ID debit card, it being the expressly acknowledged and agreed by Merchant that Merchant shall be solely responsible for verifying the validly of any SHU ID debit card presented to Merchant in payment for Merchant’s goods.
   

• D. SHU ID Off Line. If at any time, the SHU ID equipment at Merchant's location indicates an off-line status or otherwise is operating improperly, Merchant shall notify the SHU ID office immediately by telephone at (973) 971-9771. If Merchant continues to accept SHU ID payments while in an "off line" mode, then the University shall not make payment for any transaction which is later denied by the SHU ID office due to insufficient funds or because the card was invalid. In no event shall the Student Affairs & Enrollment Services be liable for any losses, damages, claims, costs or expenses suffered or incurred by Merchant due to failure of the SHU ID equipment or verification system to operate properly.
   

• E. Prohibited Transactions. Merchant shall not accept the SHU ID card in payment for the purchase of birth control, condoms, alcoholic beverages, weapons, ammunition, or explosives. Merchant acknowledges and agrees that if Merchant accepts a SHU ID card in payment for items previously stated contrary to this covenant, Student Affairs & Enrollment Services will not provide Merchant payment for such purchases. Merchant shall not mark-up the purchase price or place any surcharges on goods purchased by a SHU ID. If Merchant violates this Agreement by marking-up or placing a surcharge on goods purchased by a SHU ID card, Student Affairs & Enrollment Services may terminate this Agreement if Merchant does not cease such violation within five (5) days after written notice thereof from SHU ID Office.
   

• F. Receipt to be Provided. Merchant shall make a receipt available to a SHU ID cardholder at the time the cardholder initiates a Pirate’s Gold transaction with Merchant, which receipt shall include the amount of the transaction, the date, the account number, and the location and identity of the Merchant.
   

• 3. ASSIGNMENTS.
  
  Merchant shall not, without the prior written consent of the SHU ID Office, assign or transfer its interest under this Agreement in whole or in part. Any consent by SHU ID Office to any assignment shall not constitute a waiver of any necessity for such consent to any subsequent assignments. Each assignee or transferee approved by SHU ID Office shall assume the obligations of Merchant under this Agreement; provided, however, that no assignment approved by SHU ID Office hereunder shall release Merchant from any liability or obligation under this Agreement, and Merchant shall remain liable for the payment of all service charges and for the due performance of all of the terms and conditions contained herein. No assignment consented to by SHU ID Office shall be binding on SHU ID Office unless such assignee or Merchant shall deliver to SHU ID Office a copy of such assignment and an instrument which contains a covenant of assumption by the assignee.
   

4. INDEMNIFICATION.

• A. Seton Hall University agrees to defend, indemnify and hold harmless Merchant its affiliates, subsidiaries and parent and their directors, trustees, officers, agents, servants and employees from and against any and all claims and liabilities, relating to personal injury or property damage to the extent arising out of the negligent acts or omissions of Seton Hall University and/or its employees, servants, trustees, officers, directors or agents in connection with their duties and responsibility under this agreement.
   

• B. The Merchant agrees to defend, indemnify and hold harmless Seton Hall University and its directors, trustees, officers, and employees from and against any and all claims and liabilities, relating to personal injury or property damage to the extent arising out of the negligent acts or omissions of Merchant and/or its employees or agents in connection with their duties and responsibility under this agreement.
  
  Each party agrees that it shall give the other party prompt notice of any claim, threatened or made, or suit instituted against it that could result in a claim for indemnification above.
  
  Both parties agree that in the event that indemnification is sought under this provision, the party seeking indemnification shall furnish the indemnifying party, upon request, all information and assistance available to the indemnified party for defense against any such claim, suit, or demand.

5. DEFAULT.

• If Merchant fails to observe or perform any covenants, conditions or provisions of the Agreement to be observed or performed by Merchant, and such failure shall continue for a period of thirty (30) days after written notice thereof from SHU ID Office to Merchant, then SHU ID Office may elect to terminate this Agreement by providing written notice thereof to Merchant. No delay or omission in the exercise of any right or remedy of SHU ID Office upon any default by Merchant shall impair such right or remedy or be construed as a wavier.

6. ADVERTISING.

• Merchant agrees that it shall not advertise any connection with Seton Hall University (“University”), its Board of Trustees, Student Affairs & Enrollment Services, nor use the University's name, symbols or any other identifying marks or property nor make any representations, either express or implied, as to the University's promotion or endorsement of Merchant or Merchant's business, unless it has received written permission from the University. Notwithstanding the foregoing, Merchant shall have a non-exclusive right to use the official SHU Pirate’s Gold trademark logo in its advertising.

7. NOTICE.

• Any notice, demand, request, consent, approval or communication required by this Agreement to be given in writing shall be sent by certified mail, return receipt requested, and shall be deemed to be given when received or three (3) days after deposit in the US mail, postage paid certified mail, whichever is earlier and shall be addressed to SHU ID Office or Merchant at their respective address as follows:
  
  If to SHU ID Office : Mary Goff, Director of Campus ID
  Campus ID
  400 South Orange Avenue
  Duffy Hall, Room 63
  South Orange, NJ 07079
  
  or at such other address that SHU ID Office may give notice of to Merchant.
  
  If to the Merchant: CORPORATE NAME
  CORPORATE ADDRESS or at such other address that Merchant may give written notice of to SHU ID Office.
   

8. SUCCESSORS AND ASSIGNS.

• All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their successors except as provided in Section 3.
   

9. ENTIRE AGREEMENT.

• This Agreement constitutes the entire agreement between SHU ID Office and Merchant and supersedes and cancels any and all previous negotiations, arrangements, understandings and agreements, if any, between SHU ID Office and Merchant in connection with the subject matter of this Agreement. This Agreement together with any Exhibits attached hereto contains all the agreements of the parties with respect to he subject matter hereof, and cannot be amended or modified except by a written agreement signed by SHU ID Office and Merchant.

10. COMPLIANCE WITH LAWS.

• Merchant shall comply with all federal, state, county and municipal laws, ordinances and regulations with respect to Merchant's participation in the Pirate’s Gold Program.

11. RELATIONSHIP OF PARTIES.

• Nothing contained in this Agreement shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between SHU ID Office and Merchant and neither the provisions contained in this Agreement nor any acts of the parties shall be deemed to create any such relationship.

12. SEVERABILITY.

• If any provisions 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.

13. WAIVER.

• No failure by either party to insist upon the strict performance by the other of any term or condition of this 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 breach.
   

14. GOVERNING LAWS.

• If a dispute arises in connection with this Agreement between the parties and such dispute cannot be amicably resolved by the parties despite diligent efforts thereto, such claim or dispute shall be submitted to binding arbitration. Either party may initiate arbitration by giving written notice to that effect to the other party and to the American Arbitration Association with thirty (30) days from the date on which the dispute arose. The arbitration will be conducted in Essex County, New Jersey, using a panel designated by the American Arbitration Association. The arbitration shall be conducted in accordance with the then prevailing rules of the American Arbitration Association. Each party shall bear its own costs and expenses, including legal fees, in connection with the arbitration and the costs and expenses of the arbitrators shall be borne equally between the parties.

• This Agreement shall be governed by and in accordance with the laws of the State of New Jersey. Any legal action arising pursuant to this Agreement shall be brought in a court of competent jurisdiction in the State of New Jersey.

IN WITNESS WHEREOF, the SHU ID Office and Merchant have executed this Agreement effective as of the day and year first written above.


Seton Hall University, CORPORATE NAME
 

__________________________ __________________________
Laura A. Wankel CORPORATE OFFICER
Vice President, Student Affairs & Enrollment Services Owner


__________________________ __________________________
Date Date

 

Seton Hall University - 400 South Orange Avenue, South Orange, NJ 07079 :: 973.761.9000
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