Groupon: Collective Buying Power

Definitions

“Merchant Offering” means the goods and/or services to be provided by the Merchant, specified on the Voucher as presented by Groupon.

“Feature Period” means the period during which Vouchers for the Merchant Offering are available for purchase.

“Maximum Number of Vouchers” means the maximum number of units Groupon may promote and sell on behalf of the Merchant.

"Monthly Maximum Number of Vouchers" For monthly recurring features it shall mean the monthly maximum number of units Groupon may promote and sell on behalf of Merchant each month only after the initial Maximum Number of Vouchers has been sold.

“Full Offer Value” means the Amount Paid plus the Promotional Value.

“Amount Paid” means the amount a purchaser pays for each Voucher.

“Promotional Value” means the portion of the Full Offer Value that exceeds the Amount Paid.

“Promotional Value Expiration Date” means the date when the Promotional Value expires as specified on the Voucher. It is the date after which the Voucher may only be redeemed for the Amount Paid.

“Remittance Amount” means the amount Groupon will forward to Merchant for each Voucher sold.

“Fine Print” means the Merchant specified conditions and restrictions on the redemption of the Voucher as set forth on the Website and Voucher.

1. Voucher Program.

a. Merchant authorizes Groupon to promote and distribute Vouchers on Merchant’s behalf in accordance with this Agreement and subject to the “Terms of Sale” located at http://www.groupon.com/terms#terms-of-sale. Merchant is the seller of the Vouchers and the Merchant Offering. The Voucher will evidence the Merchant Offering and be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Voucher from the Merchant by presenting the Voucher in paper form or using their mobile device.

b. Merchant shall be responsible for all customer service in connection with the Merchant Offering and for supplying all goods and services specified in the Merchant Offering and any customer loyalty programs associated with the Merchant Offering. If, after the Promotional Value Expiration Date, the goods and services specified by the Voucher are no longer available, the Merchant must allow the customer to redeem the Voucher toward any goods or services then offered by the Merchant. Groupon reserves the continuing right, but shall not be obligated, to reject, revise, or discontinue promoting any Merchant Offering and Voucher to conform the Merchant Offering and Voucher to Groupon specifications or applicable law.

c. Groupon may offer and sell on behalf of the Merchant up to the Maximum Number of Vouchers through a variety of platforms: through its feature deal-of-the-day, various side deals, marketplace, or affiliate network on multiple occasions and in multiple markets. All of these platforms may be made available to a part of or to Groupon's entire subscriber base, or the communities associated with Groupon's affiliates. For features offered on a recurring basis, Groupon will offer and sell up to an initial Maximum Number of Vouchers for the initial feature, then apply a monthly Maximum Number of Vouchers for subsequent features as specified in the Deal Definitions of the Agreement, which may be increased at Merchant’s discretion via the Merchant Center. Groupon will promote the Merchant Offering on dates in its discretion and will make reasonable efforts to allow Merchant to approve the Merchant Offering prior to its publication.

d. Merchant will honor the Vouchers for their Full Offer Value through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, Merchant shall honor the Vouchers for at least the Amount Paid. EXCEPT WITH RESPECT TO ANY VOUCHERS THAT ARE AUTOMATICALLY REFUNDED BY GROUPON OR MERCHANT, MERCHANT ACKNOWLEDGES THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT OR PERMITTED BY APPLICABLE LAW, MERCHANT WILL CONTINUE TO HONOR THE VOUCHER FOR THE AMOUNT PAID INDEFINITELY.

e. Partial redemptions: If applicable, and if a customer redeems a Voucher for less than the Amount Paid, the Merchant will be responsible for handling any unredeemed value as required by applicable law.

f. Merchant agrees that in providing the goods or services that are the subject of the Voucher, it will not impose any extra or additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms set forth on the face of the Voucher, including the Fine Print.

g. Merchant agrees that so long as an appointment is made by a customer for the redemption of a Voucher before the Voucher’s Promotional Value Expiration Date, the Voucher will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.

2. Payment

Amounts retained by Groupon are compensation to Groupon for marketing, promoting, and advertising the Merchant Offering and distributing the Vouchers on behalf of Merchant. Merchant agrees and acknowledges that if Merchant is either unwilling or unable to perform its obligations under this Agreement, Groupon may withhold future payment and/or secure reimbursement from Merchant for any unredeemed or refunded Vouchers.

Authorization is granted to Groupon to initiate ACH credit transaction entries to Merchant’s depository account designated at the depository financial institution named in this Agreement ("Merchant Bank Account"). Only in the event of an error, authorization is granted to Groupon to initiate debit entry adjustments to the Merchant Bank Account to correct any error. Acknowledgement is made that Groupon’s origination of all ACH transactions to Merchant Bank Account must comply with the provisions of U.S. law. Once Groupon processes the payment, ACH payments take up to five (5) business days to become available in the Merchant Bank Account.

3. Merchant Center.

The Merchant Center is an on-line tool whereby Merchants may access information (e.g. analytics and statistics, payment data, customer feedback) and submit redemption data for its Merchant Offering. In order to use the Merchant Center, Merchant must register an account on the Website. If Merchant registers an account, Merchant is responsible for maintaining the confidentiality of the Merchant account password, and is responsible for all activities that occur under such account. Merchant agrees to immediately notify Groupon in writing of any unauthorized use of the Merchant account or any other breach of security related to the Website. Groupon is not and will not be liable for any loss or damage arising from the use of the Merchant Center. Groupon reserves the right to refuse service and/or access to the Merchant Center to Merchant at any time without notice for any reason. The Merchant Center also offers other options. If Merchant chooses to use such options, then Merchant may be required to provide information and/or agree to separate terms that are specific to those options that will be disclosed at the time Merchant elects any such options. Some options may include a deal request form and require submission of deal terms for a feature By submitting a deal term or a deal request, Merchant agrees to the deal terms Merchant provides and is contractually bound to those terms. Submission of a deal request does not obligate Groupon to accept a deal request or any of its contents nor to promote a feature.

4. Groupon Programs.

a. The Groupon program currently branded “Now!” is an optional, self-service program that allows the Merchant to create short term feature(s) through the Merchant Center on date(s) and time(s) as specified by the Merchant. Groupon may implement similar programs in the future not branded “Now!” and Merchant agrees that these terms will apply to any such programs. By creating a Now! Feature and submitting a deal request, Merchant defines the conditions of, and may supply the content and images to describe and illustrate, the Now! Merchant Offering and its terms. Submission of a deal request does not obligate Groupon to accept a deal request or any of its contents nor to promote a Now! feature, and is not binding on Groupon until Groupon actually promotes the feature on the Website. At the point that Groupon begins to promote a Now! feature to the public, it becomes active unless Groupon earlier terminates the feature for any or no reason. Groupon will promote a Now! feature to Groupon customers and the general public based on geographic or other geolocational data, but will use its sole discretion to determine to whom a feature is actually promoted and made available. Merchant is responsible and liable for all Now! feature content and terms, and for Groupon's or any purchaser's use or reliance on any of the foregoing. In creating any Now! feature, Merchant may not: (a) offer to sell any goods or services on terms or in a manner that is prohibited by law; (b) include any content that violates or infringes in any way upon the rights of any third-party; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, or which encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any law.

b. Merchant shall allow purchasers of Now! Vouchers to redeem Vouchers for the Full Offer Value until the Feature Period ends. Merchant shall further allow Voucher holders to redeem for twenty-four (24) hours after the underlying Feature Period by: (a) continuing to redeem Vouchers for the Full Offer Value as though the Full Offer Value has not yet expired; or (b) redeeming the Vouchers for Merchant’s goods and/or services for the Amount Paid. Now! Vouchers issued but not printed or viewed in a mobile format within 24 hours following the expiration of an applicable Feature Period will be deactivated by Groupon and all purchasers will be automatically refunded. Any Now! Vouchers redeemed by Merchant beyond the twenty-four (24) hour period after the Feature Period ends are unauthorized redemptions for which Merchant will not receive any payment from Groupon.

c. Upon Merchant approval, Groupon may discount the Now! feature during a Feature Period for an Amount Paid that is less than the Amount Paid that Merchant has established in the deal request. If Groupon elects to promote a Now! Voucher to customers at any price that is less than the price Merchant has established, Groupon will: (i) pay Merchant the same Now! Remittance Amount established by Merchant in the deal request; (ii) in no case make more than any maximum number of units available to customers if specified in the deal request; and (iii) not make Merchant’s Now! feature available at different prices at the same time.

5. Groupon Rewards and Data Services.

a. Rewards. Groupon provides Merchant the ability to offer a loyalty program through Merchant’s Service Account (“Rewards”). If Merchant elects to offer Rewards to its customers, Merchant must execute Groupon’s standard Rewards service request form (“Service Request”) describing the terms of Merchant’s Rewards program. The Rewards offer is reflected in a paper voucher or electronic certificate that contains the terms of, and unique redemption information for the Rewards offer.

Merchant agrees and authorizes Groupon, its service providers, data processing partners including without limitation First Data Company Services Corporation, Golden Retriever Systems, TSYS Acquiring Solutions, and Merchants acquiring bank/financial institution, or Merchants designated point-of-sale systems provider (collectively, “Data Providers”), to share and transmit to Groupon and/or its service providers on a daily basis all electronic payment transaction records captured by Merchant or on Merchant‘s behalf. If Merchant’s acquiring bank/financial institution or point-of-sale processor is unable to forward American Express or Discover transactions to Groupon, Merchant authorizes American Express and/or Discover, as appropriate, to transmit such electronic transaction records to Groupon and/or its service providers on a daily basis.

Merchant agrees to not impose any restrictions on a Rewards offer other than as provided in the relevant Service Request, on the face of the Rewards voucher and in the terms located at https://www.groupon.com/rewards. Upon the purchase threshold being met by a participating customer, Groupon will electronically issue the Rewards voucher to such customer in accordance with the applicable Service Request. Merchant agrees that only purchases made by participating customers using payment cards registered in their Groupon accounts and occurring within twelve (12) months of the most recent qualifying purchase will be counted toward the customer’s purchase threshold.
Upon the expiration or termination of the applicable Service Request, all rights granted to Merchant in connection the Merchant’s Rewards program will cease. However, Merchant agrees that the termination of the Service Request by either party, or Merchant’s election to cease participating in the Rewards program, shall not in any way (i) prevent a participating customer from satisfying the purchase threshold and receiving the promotional reward for a period of 60 days from the expiration or termination of the Service Request (ii) prevent Groupon from continuing to access the electronic transactions data for a period of 60 days after the expiration or termination of Merchant’s Rewards program, and (iii) limit Merchant’s obligation for redemption of a Rewards offer.

b. Data Services. Subject to applicable Laws and in accordance with Groupon’s policies and procedures, if Groupon provides Merchant with access to customer’s personal identifiable information and financial transaction data (“Customer Data”), it shall be provided solely to the extent necessary for Merchant to redeem or verify the validity of a Rewards offer. Merchant may not use any such Customer Data for any purpose other than redemption, nor shall Merchant combine such Customer Data with any other data Merchant or any third party Merchants maintain. Merchant shall, and shall ensure that any third party Merchants, protect the security of Customer Data and comply with all Laws (and Groupon’s policies and procedures) relating to the processing of such Customer Data. If Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any Confidential Information of Groupon, Merchant shall immediately notify Groupon, and shall cooperate with Groupon in the investigation of such breach and the mitigation of any damages. Merchant shall bear all associated costs and expenses incurred by Groupon to comply with applicable Laws (including without limitation any data breach Laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by Groupon, destroy or return to Groupon all the Customer Data in Merchant’s or any third party Merchant’s possession.

6. Private Sale and Staggered Expiration Dates.

a. Private Sale. Unless Merchant elects to opt out, Groupon may continue to promote the Merchant Offering through any Groupon platform or channel (including but not limited to targeted emails and search engine marketing), after the Feature Period ends until the Maximum Number of Vouchers is reached (“Surplus Vouchers”). The Promotional Value Expiration Date will remain the same for the Surplus Vouchers. Payments for Surplus Vouchers sold prior to the last payment installment will be made with the last installment in the payment schedule minus the Remittance Amount of refunds (if any). Payments for Surplus Vouchers sold after the last installment in the payment schedule will be made on the following 1st and 16th of the month minus the Remittance Amount of refunds (if any). All other terms remain the same. Groupon is not obligated to promote the Merchant Offering or Surplus Vouchers after the Feature Date. This clause 6(a) does not apply to monthly recurring Feature Periods.

b. Staggered Expiration Dates. Unless Merchant elects to opt out, Groupon may stagger the Promotional Value Expiration Dates by (i) extending the Promotional Value Expiration Date of one-third of the Vouchers by fourteen (14) days; and (ii) extending the Promotional Value Expiration Date of one-third of the Vouchers by twenty-eight (28) days. Merchant agrees to honor these extended Promotional Value Expiration Dates as printed on the face of the Voucher. Refund reconciliation payment to Merchant, if any, will be delayed up to four (4) weeks from the date indicated in the Payment section above.

7. Mobile Redemption Devices.

If Groupon provides a mobile redemption device, Merchant shall ensure the device is used for the sole purpose of transmitting redemption data to Groupon and for no other purpose. The device must be returned to Groupon fourteen (14) days after the Promotional Value Expiration Date, unless a re-feature or a new campaign is planned. Groupon reserves the right to bill Merchant for the cost of the device if it is not returned as well as costs related to its misuse.

8. Term and Termination.

This Agreement shall continue in effect through the last date when a customer redeems a Voucher offered by Merchant through Groupon (the “Term”). Either Party may terminate this Agreement at any time for any reason by giving the other Party written notice of such termination. The expiration of the Term shall not in any way affect the purchaser’s usage of the Voucher, or Merchant's obligation for redemption of the Voucher. The remaining sections of this Agreement and any claims for payments due Groupon shall survive any expiration or termination of this Agreement.

9. Exclusivity.

Upon execution of the Agreement, Merchant agrees that Merchant will not promote an online offer substantially similar to the Merchant Offering described in this Agreement of similar or greater value for six (6) months following the Effective Date. Breach of the preceding sentence shall be deemed a material breach of this Agreement.

10. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws.

Merchant further agrees to comply with the Voucher terms and conditions as set forth on the Website, including but not limited to the “Terms of Use” http://www.groupon.com/terms, and to ensure that the Vouchers comply with any and all laws that govern vouchers, gift cards, coupons, and/or gift certificates, including but not limited to the United States Credit Card Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Fine Print related to the Merchant Offering on the face of the Voucher. To the extent required by applicable escheat or abandoned or unclaimed property laws, Merchant shall be solely responsible for and agrees to report and pay over to the applicable local, state, provincial, territorial or federal governmental agency any unredeemed cash value of any Voucher issued under this Agreement. Merchant is responsible for keeping track of the cash Amount Paid by the purchaser for the Voucher and any unredeemed balance of that cash amount to ensure compliance with this Section. Upon request and at its sole option, Groupon may provide redemption data to Merchant if available to Groupon, but such data will only include information reasonably necessary for Merchant to comply with its escheat obligations and subject to the confidentiality terms in this Agreement.

11. Representations and Warranties.

Merchant represents and warrants throughout the Term that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions in which Merchant's goods and services will be provided; (c) the Voucher, upon being delivered by Groupon, shall be available immediately for redemption; (d) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law and/or regulation governing the use, sale, and/or distribution of alcohol and any laws governing vouchers, gift cards, coupons, and/or gift certificates; (e) the terms and conditions of any Rewards program do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order; (f) Merchant owns all right, title and interest in the Merchant IP (as defined herein) and has the right to grant licenses in the Merchant IP as stated in this Agreement; (g) the Vouchers and any advertising or promotion of Merchant's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (h) the Merchant IP does not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party; (h) Merchant holds all necessary regulatory documents and authorization documents, if any, required to make any Merchant Offering and provide the goods or services described therein; and (i) Merchant’s Business Information and Direct Deposit Details as provided herein, indicating where payments should be forwarded is accurate and is the authorized entity to receive the funds forwarded by Groupon; and (j) Merchant will not resell, broker or otherwise disclose any Customer Data (as defined below) to any third party, in whole or in part, for any purpose whatsoever, and Merchant will not copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement.

12. Indemnification.

a. To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Groupon, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorney's fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement or the representations and warranties made herein; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the sale and subsequent redemption of a Voucher ("Taxes"); (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest. (d) any claim arising out of a violation of the law and/or regulation governing Merchant’s goods and/or services; (e) any claim arising out of Merchant’s violation of law and/or regulation governing the use, sale, and/or distribution of alcohol; (f) any claim arising out of or relating to the goods and services provided by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; and (g) any claim by a customer for the Amount Paid.

b. Groupon agrees to defend, indemnify and hold Merchant, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorney's fees and costs) arising out of or relating to any of the following (a) any infringement, misappropriation or other violation of any trademark or copyright of any third party by Groupon other than anything related to Groupon’s use of materials provided by Merchant or authorized for Groupon’s use by Merchant.; or (b) any modifications to Merchant’s advertising or promotion of Merchant’s products and services made by Groupon found to constitute false, deceptive or unfair advertising or disparagement under any applicable laws.

13. Confidentiality.

The terms of this Agreement are confidential, and Merchant agrees to not disclose the terms described herein to any party (other than its employees, parent companies, and shareholders on a need-to-know basis or as required by applicable public records and other law, only after each has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). Any breach of this confidentiality provision by Merchant shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to Groupon for which there will be no adequate remedy at law. In the event of such breach, Groupon will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).

14. Intellectual Property Rights.

a. Merchant agrees and acknowledges that Groupon owns all right, title, and interest in the Groupon Website, Groupon trademarks, and any software, technology or tools used by Groupon to promote, market, sell, generate, or distribute the Vouchers (collectively the "Groupon IP"). Merchant shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the Groupon IP or any portion thereof, or use such Groupon IP as a component of or a base for goods or services prepared for commercial sale, sublicense, lease, access or distribution. Merchant shall not prepare any derivative work based on the Groupon IP. Merchant shall not translate, reverse engineer, decompile or disassemble the Groupon IP.

b. Merchant grants to Groupon a non-exclusive worldwide license and right to use, reproduce, display, distribute and transmit the Merchant's name, logo and any trademarks and any photographs, graphics, artwork, text and other content provided or specified by Merchant ("Merchant IP") in connection with the marketing, promotion, sale or distribution of Vouchers, in any and all media, formats or platforms in which such Vouchers are marketed, promoted, transmitted, sold, or distributed, including but not limited to on the Groupon Website.

15. Customer Data Restrictions.

a. “Customer Data” means any and all identifiable information about purchasers generated or collected by Groupon or Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, and purchaser preferences and tendencies.

b. Merchant may use Customer Data for the sole purpose of fulfilling its redemption obligations in connection with the Merchant Offering pursuant to this Agreement. Merchant expressly agrees that any Customer Data that may be provided hereunder is being provided solely to fulfill its redemption obligations (including, but not limited to, the redemption of Vouchers and provision of goods and services to purchasers), and may not be used to enhance a file or list owned by Merchant, or any third party. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. Merchant agrees that it will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling its redemption obligations hereunder (including, but not limited to, redeeming Vouchers and providing goods and services to purchasers). If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy.

c. For purposes of this Agreement, the restrictions set forth herein on Merchant’s use of Customer Data do not apply to: (a) data from any customer who is already a customer of Merchant prior to the effective date of this Agreement, to the extent such data was previously provided to Merchant by such customer independent of this Agreement or any transaction hereunder; or (b) data supplied by a customer directly to Merchant who becomes a customer of Merchant in connection with such customer explicitly opting in to receive communications from Merchant for the purposes for which such Customer Data will be used by Merchant; provided that Merchant handles and uses such Customer Data in compliance with applicable Laws and Merchant’s posted privacy policy.

16. Limitation of Liability.

EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. GROUPON'S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF THE VOUCHERS SHALL BE LIMITED TO THE AMOUNT OF FEES RETAINED BY GROUPON HEREUNDER. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE MADE BY MERCHANT WITHIN ONE (1) YEAR OF FIRST PUBLICATION OF THE MERCHANT OFFERING, OR THE CLAIM WILL BE DEEMED WAIVED BY MERCHANT.

17. Other.

a. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.

b. This Agreement constitutes the entire agreement between the Parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the Parties in writing.

c. Merchant may not assign or transfer its rights or obligations under this Agreement, whether by operation of law or otherwise, without Groupon’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Groupon. Nothwithstanding the foregoing, Groupon may assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business without notice to Merchant.

d. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected.

e. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GROUPON DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS WILL BE ERROR-FREE OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.

f. Any disputes, controversies, or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity or termination, shall be referred to and finally determined by arbitration in Chicago, Illinois before a single arbitrator who is a member of the American Arbitration Association, from which arbitration there shall be no appeal. Such arbitration shall be held in Chicago, Illinois, in accordance with the Commercial Rules of the American Arbitration Association, with the governing law to be that of the State of Illinois and the laws of the United States applicable therein. The award rendered by the arbitrator shall be final and binding on all Parties, and judgment upon the reward rendered by the arbitrator may be entered in any court of competent jurisdiction.

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Merchant Terms and Conditions Effective 12/20/2012-1/15/2013