Last Updated 02/28/2020
These Booking Terms and Conditions (“Terms and Conditions”) govern and are incorporated into the Groupon Booking Agreement between Groupon International Limited (“Groupon”) and Company (collectively with any schedules attached hereto, the “Agreement”). Groupon, subject to the provisions of this paragraph, may amend these Terms and Conditions in its sole discretion at any time. The most recent version of the Terms and Conditions (as may be amended by Groupon from time to time) will be available at www.groupon.com/developers/untiinternational-booking-partner-terms-and-conditions/. Company agrees that posting amended Terms and Conditions shall constitute adequate notice of any amendments to the Agreement and Company further agrees to be bound by any such amendments, which shall become immediately effective upon posting.
1. Definitions. Capitalized terms not otherwise defined herein shall have the following meanings:
1.1. “Affiliate” means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with, a specified person or entity. As used in this definition, “control” or “controls” and the formative “ “controlled”, mean the possession, directly or indirectly, of 50% or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract or otherwise.
1.2. “Booking” means an entry into the Company Services of an appointment reservation or ticket order by or on behalf of a Customer via the Distribution Channels.
1.3. “Booking Fee” means the amount, as set forth in the Booking Agreement, that Groupon will pay Company for each Booking, subject to these Terms and Conditions.
1.4. “Company API” means Company’s application programming interface (“API”) and any accompanying or related source code and executable applications, in each case as modified or updated from time to time.
1.5. “Company Content” means any content and materials made available to Groupon or its Affiliates through the Company Services, including Booking Data, names, addresses, logos, trademarks, photographs, domain names, audiovisual recordings, video recordings, audio recordings, graphics, artworks, text, images, and/or the likeness of any person, in each case as modified from time to time.
1.6. “Company Documentation” means all documentation and other materials designed to provide guidance and instruction regarding the operation, maintenance and use of the Company API and/or the other Company Services.
1.7. “Company Services” means, collectively, the Company API, the Company Platform and the services provided or performed by Company under this Agreement.
1.8. “Confidential Information” means all non-public information that a party discloses to the other party, whether orally or in writing, including the terms of this Agreement, and any technologies, software programs (including any and all source code), business plans and strategies, product plans and designs, pricing or other financial information, technical data or any other information that is designated as “confidential” or “proprietary” or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Notwithstanding the foregoing, ConfidentialInformation shall not include information that: (i) becomes generally availableto the public through no fault of the receiving party or its Affiliates orRepresentatives; (ii) known to the receiving party prior to disclosurehereunder and without an obligation of confidentiality under this Agreement orany other agreement; (iii) was independently developed without the use of anyConfidential Information of the disclosing party; or (iv) was obtained from athird party who has a legal or contractual right to transfer or disclose it. CustomerData is Groupon Confidential Information.
1.9. “Confirmation“means a digital or other confirmation issued by or on behalf of Company or aMerchant to a Customer who makes a Booking.
1.10. “Customer” means any past, present or prospective customer or subscriber of Groupon or its Affiliates.
1.11. “Customer Data” means all identifiable information about Customers generated or collected by Groupon, its Affiliates, or Company, including names, shipping addresses, email addresses, phone numbers, Customer preferences and tendencies, and financial transaction data.
1.12. “Distribution Channels“means the websites, mobile applications, and other distribution channels orportals owned, controlled, or operated by Groupon and its Affiliates and/orGroupon’s third party business partners.
1.13. “Groupon Platform” means Groupon’s and/or its Affiliates’ digital commerce platform and associated services available through Distribution Channels.
1.14. “Groupon Property“means, collectively: (a) trademarks, service marks, logos, trade names, domainnames and social media identifiers of Groupon or its Affiliates (“GrouponMarks”); (b) the Groupon Platform; (c) the Distribution Channels; (d) allother content, data, copyrighted material, information or materials supplied byGroupon to Company under this Agreement (collectively, “Groupon Content”);and (e) all copyrights, patents, trade secrets and other intellectual propertyin the foregoing.
1.15. “Malicious Code” means any computer virus, Trojan horse, worm, time bomb or other code or hardware component designed to disable, damage or disrupt, permit unauthorized access to, erase, destroy or modify any software, hardware, network or other technology.
1.16. “Merchant” means a contractor or third party merchant that enters into an agreement with Groupon or its Affiliates to provide offers via the Distribution Channels, and with Company to gain access to the Company Platform.
1.17. “Representative” means any employee, contractor, representative or agent of a party.
2. In General.
2.1. Integration. The Parties will integrate the Groupon Platform with the Company Platform in accordance with the terms of this Agreement to facilitate Bookings via the Distribution Channels (“Integration”); provided, that Groupon is under no obligation to use, promote or make available the Company Services or Company Content. Company shall comply with all guides and specifications provided by Groupon in connection with the Integration, including the Groupon Third party Transactional Guide, Third Party Taxonomy and Third party Ingestion Guide. If agreed between the parties, Bookings may be displayed on the Distribution Channels via an inline iframe, within which all Company Content will be hosted from Company’s own domain servers via HTTPS (with a minimum TLS 1.2 cipher suite protocol) or such other protocol agreed by the parties.
2.2. Maintenance and Support. Company shall (a) host and maintain the Company Services with a minimum availability of 99.95%, and 99% of service response times (TP99) shall not exceed 100ms; (b) provide Groupon with first line support services from 7am to 7pm local time where Company Services and Bookings are offered, every business day in accordance with Schedule A attached hereto; and (c) provide Groupon with at least 30 days’ prior written notice of any updates or modifications reasonably expected to disrupt the Integration. In addition to the other requirements set forth herein, in the event the Company Services or Company Content become unavailable at any time, Company shall (i) give prompt written notice to Groupon of such unavailability, and (ii) notify Groupon once the Company Services and Company Content have been restored and are operating normally.
2.3. Additional Company Obligations. Company shall: (a) provide Groupon or its Affiliates with real-time calendars of available appointment data for each Merchant, including inventory types and descriptions, total number of slots, number of available slots and start/stop times (“Booking Data”); (b) provide any and all Company Content via the Company API, (unless expressly prohibited by Company’s agreements with Merchants); (c) promptly and continuously update the Company Services to ensure that Company Content and Booking Data are up-to-date; (d) permit Customers to change or cancel Bookings; (e) confirm all Bookings (including changes and cancellations) and Customer inquiries in real-time or near real-time; (f) manage all relationships with, and provide front-line support to, Merchants in connection with Bookings; (g) when requested, assist in resolving any Booking-related Customer issues; provided that Groupon shall provide front-line customer service in all cases; (h) comply with Company’s privacy policy, all applicable laws and Section 8.3 in connection with any Customer Data in its possession or control; and (i) promptly notify Groupon or its Affiliates of any requests to remove Company Content from the Distribution Channels.
2.4. Terms of Use. Company agrees that (a) Bookings made via the Groupon or Affiliate-owned Distribution Channels are subject to Groupon’s then-current “Terms of Use”, and (b) Bookings via other Distribution Channels may be subject to third-party platform terms and conditions.
3. Prohibited Activities. Company and its Representatives shall not: (a) manipulatethe functionality of the Company Services to direct or enable Customers tonavigate away from the Distribution Channels to Company’s or any third party’swebsite or service; (b) limit Groupon’s ability to cache or otherwise storeCompany Content; (c) place usage, rate or access limits on Groupon’s use of theCompany Services, (d) allow any third party content (other than Merchantcontent provided pursuant to this Agreement), including any advertisements, tobe contained in the Company Content; (e) use Groupon Property or any variationthereof without first obtaining Groupon’s express written approval; or (f)upload to, or provide through, the Company Services any Company Content that:(i) violates any third-party right, including any copyright, trademark, patent,trade secret, moral right, privacy right, publicity right, or otherintellectual property or proprietary right, (ii) is unlawful, harassing,abusive, tortious, threatening, harmful, defamatory, false, intentionallymisleading, trade libelous, pornographic, obscene, patently offensive or isotherwise objectionable, (iii) is harmful to minors, (iv) encourages conductthat constitutes a criminal offense or gives rise to civil liability, or isotherwise in violation of any applicable law or obligations or restrictionsimposed by any third party, or (v) contains any Malicious Code (collectively, “ProhibitedActivities”).
4. Proprietary Rights.
4.1. Company License. Company hereby grants to Groupon and its Affiliates a non exclusive, perpetual, irrevocable, sublicenseable, transferable, royalty-free, fully paid up, worldwide license and right to (and to permit any third party that is under contract to provide services on its behalf, (“Contractors“) to): (a) access, use, edit, adapt, modify, re-format, copy, distribute, display, reproduce, sublicense, publicly display, broadcast, transmit, stream, publish, promote, perform and create derivative works of (collectively, “Use”) the Company Services and Company Content on the Distribution Channels (“Content License”); provided, that Groupon shall not materially alter any Company Content in such a manner as to intentionally misrepresent or materially mislead; and (b) Use, make unlimited calls to, upload to, cache and download from, the Company API (“API License” and, together with the Content License, the “License”), in each case to fulfill Groupon’s rights and obligations under this Agreement. Company acknowledges and agrees that, during and after the Term, Groupon may maintain a copy of, store and Use the Company Content, and may sublicense the foregoing rights to any other person or entity: (i) to exercise its rights hereunder; (ii) to fulfill its obligations and make available the Groupon Platform and Distribution Channels to Company or Customers; and (iii) to fulfill its obligations under applicable law and otherwise for recordkeeping purposes.
4.2. Company Documentation. Company shall provide Groupon access to the Company Documentation, as may be updated from time to time. Groupon and its Affiliates and Contractors may access, use, print copies of and reproduce the Company Documentation to fulfill obligations hereunder.
4.3. Malicious Code. The Company represents and warrants, to its actual knowledge at the time of Integration, that the Company Platform, as delivered by the Company, does not contain any Malicious Code. If Company introduces any Malicious Code into the Groupon Platform, any Distribution Channel or any other software, hardware, system or network of Groupon or any of its Affiliates or third party business partners, Company shall, at its sole cost and expense, promptly eliminate such Malicious Code and otherwise remedy any damages, losses or other adverse effects resulting from such Malicious Code.
4.4. Title. As between Company and Groupon: (a) Company retains title to and ownership of the Company Services and Company Documentation; and (b) Groupon retains title to and ownership of the Groupon Property. Each party will exclusively maintain ownership of any software that it creates in connection with the Integration.
4.5. Feedback. If Company provides Groupon or its Affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other content or information about a Groupon or Merchant product or service in connection with this Agreement (“Feedback”), Company irrevocably assigns to Groupon all right, title and interest in and to such Feedback. If Company’s assignment to Groupon is invalid for any reason, Company hereby irrevocably grants to Groupon and its Affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to Use Feedback for any purpose, and sublicense the foregoing rights to any person or entity. Company warrants that: (a) Feedback is Company’s original work or was otherwise lawfully obtained; and (b) Groupon and its sublicensees’ exercise of rights under the assignment or license above will not violate any person’s rights. Company agrees to provide Groupon such assistance as Groupon may require to document, perfect or maintain Groupon’s rights in and to Feedback.
5. Financial Terms.
5.1. Booking Fees. Subject to Section 5.2 and Section 6, Groupon shall remit to Company the aggregate Booking Fees incurred by Groupon for each calendar month within 45 days of the end of such month and subject to receipt of an invoice issued by the Company. Invoices shall include a purchase order number (as provided by Groupon) and shall be sent monthly to Grint-centralap@groupon.com, or to Groupon’s supplier portal, as requested by Groupon. Groupon is not required to pay any Booking Fees it disputes in good faith. Following resolution of any such dispute, the Company shall issue a new invoice and credit note (as required) and Groupon shall pay the Booking Fees within 45 calendar days of receipt thereof. Notwithstanding anything to the contrary, if any payment falls due on a public holiday or weekend, such payment will be processed on the next business day. If any payment falls due within the last five business days of the month, such payment will be processed on the first business day of the following month.
5.2. Chargebacks, Cancellations and Refunds. Company agrees that Merchants will be responsible for handling all cancellations and refunds in accordance with Merchants’ and Groupon’s policies, and Groupon shall be entitled to deduct from future payments to Company (or if no future payments will be made, Groupon shall be entitled to receive a refund of, all amounts Company has previously received from Groupon (if any) in connection with such cancelled or refunded offers or offers subject to a valid chargeback. Company is responsible to issue a timely credit note for any chargebacks, cancellations, or refunds previously invoiced.
6. Taxes.
6.1. Generally. Any and all sales, use, excise, general, GST, VAT, or other similar taxes (“Taxes”), imposed on or arising from the Booking Fees payable by Groupon to Company per the Booking Agreement, shall be properly invoiced to Groupon by Company. Unless otherwise agreed in the Booking Agreement or required by law, Booking Fees will be inclusive of any applicable Taxes.
6.2. Tax Levies/Withholding Taxes. In the event Groupon receives written notice of a validly issued state or federal tax levy relating to past-due Taxes owed by Company, Groupon may, in accordance with applicable law, deduct such amounts from Booking Fees. Groupon may be required by tax authorities to withhold taxes on behalf of Company. Groupon reserves the right to deduct any such taxes from amounts due to Company and to remit them to the appropriate tax authority. Groupon may also be required to report the withholding tax payments to the tax authorities. Groupon shall provide evidence to Company of payment of withholding taxes to the relevant tax authorities as soon as possible.
7. Term and Termination.
7.1. Term. Subject to Section 7.2, the initial term of this Agreement shall begin on the Effective Date and continue for 12 months thereafter (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive 12 month periods (each a “Renewal Term” and, together with the Initial Term, the “Term”).
7.2. Termination.
7.2.1. During a Renewal Term, eitherparty may terminate this Agreement for any reason upon 60 days prior writtennotice to the other party.
7.2.2. Either party may terminatethis Agreement immediately upon notice to the other party if the other party:(a) materially breaches this Agreement and such breach is not cured within 30days after receiving notice thereof (b) materially breaches this Agreement andsuch breach is not reasonably capable of being cured; (c) files a petition forbankruptcy, is adjudicated bankrupt, is insolvent, makes an assignment for thebenefit of creditors, or enters into an agreement with its creditors pursuantto other bankruptcy law; or (d) has a petition for bankruptcy filed against itand such petition is not dismissed within 45 days.
7.3. Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of the parties hereunder shall immediately terminate, except as explicitly set forth herein; (b) Company will promptly return to Groupon all Groupon Confidential Information; and (c) Company shall continue to fulfill any and all obligations related to Bookings made prior to termination or expiration hereof. For the avoidance of doubt, the expiration or termination of this Agreement shall not affect any undisputed amounts owed, but not paid, by a party to the other prior to the effective date of such expiration or termination.
7.4. Suspension. Without limiting Groupon’s rights and remedies under this Agreement, Groupon may suspend access to the Groupon Platform and/or Distribution Channels, in whole or in part, at any time for any reason.
7.5. Survival. The following provisions will survive any termination of this Agreement: Section 1 (“Definitions”), Section 4.3 (“Malicious Code”), Section 4.4 (“Title”), Section 4.5 (“Feedback”), Section 7.3 (“Effects of Termination”), Section 8 (“Confidentiality; Customer Data”), Section 10 (“Indemnification”), Section 11 (“Limitations of Liability”), Section 13 (“Governing Law/Disputes”), this Section 7.5 (“Survival”) and Section 15 (“Miscellaneous”).
8. Confidentiality; CustomerData.
8.1. Use, Disclosure and Security. Except as explicitly set forth in this Agreement, each party shall, with respect to any Confidential Information of the other party: (a) maintain such Confidential Information in strict confidence and using no less than a reasonable degree of care; (b) use such Confidential Information solely to perform its obligations or exercise its rights hereunder; and (c) not disclose such Confidential Information to any third party, other than to Affiliates and Representatives who have a need to know for purposes of this Agreement and who are bound by a duty of confidentiality that is substantially equivalent to that contained herein. Each party shall be responsible to the other party for any violation of this Section 8 by any such receiving party’s Affiliates or Representatives.
8.2. Required Disclosures. If a party is legally compelled to disclose any Confidential Information, such party shall, to the extent permitted by applicable law, provide to the other party prompt prior written notice of such requirement so that the disclosing party may seek a protective order or other appropriate remedy. The receiving party shall furnish only that portion of the Confidential Information which is legally required to be disclosed, and shall use all its reasonable commercial efforts to preserve the confidentiality of the remaining Confidential Information.
8.3. Customer Data.
8.3.1. Groupon shall exclusively ownany and all Customer Data. Company expressly agrees that any Customer Data thatmay be provided to or collected by Company or any Merchant under this Agreementis being provided or collected solely to facilitate Company’s obligations underthis Agreement, and may not be used to enhance a file or list owned by Companyor any Merchant, Contractor or third party. Company represents and warrantsthat it will not, nor will it permit any Merchant or Representative to, resell,broker or otherwise disclose any Customer Data to any third party, in whole orin part, for any purpose whatsoever. Company agrees that it will not copy orotherwise reproduce any Customer Data other than for the limited purpose offulfilling its obligations pursuant to this Agreement. If Company engages anyContractor to facilitate its obligations hereunder, Company shall usecommercially reasonable measures to ensure that such Contractor implements andcomplies with industry standard security measures in handling any CustomerData. In the event of any breach of security or confidentiality with respect ofCustomer Data that necessitates notice to any Customers: (a) Groupon shall havesole control over the content, timing and method of distribution of such notice;(b) Company may notify the affected customers only upon Groupon’s prior writteninstructions; and (c) Company shall reimburse Groupon all out of pocketexpenses incurred by Groupon in connection with any notice of any breach ofsecurity or confidentiality for which Company is wholly or partiallyresponsible, even if such notice is not legally mandated.
8.3.2. Provided that Company uses Customer Data in compliance with applicable laws and Company’s privacy policy, restrictions stated in this Agreement on Company’s use of Customer Data do not apply to data: (a) from any Customer who is already a customer of Company before the Effective Date if such data was provided independent of this Agreement; or (b) supplied directly to Company by a Customer who becomes a customer of Company by explicitly opting in to receive communications from Company. Notwithstanding the foregoing, Company shall not: (i) license or sell the information of any Customers who access the Company Services through the Distribution Channels to any of Groupon’s competitors; or (ii) use such information to target communications to Customers.
8.3.3. Company shall not transfer Customer Data outside of the European Economic Area without the prior written consent of Groupon. The European Economic Area shall be deemed to include the United Kingdom for the duration of the transition period under the UK-EU withdrawal agreement.
8.4. Irreparable Injury. Each party acknowledges that the other party may be irreparably harmed by any breach of this Section 8, and agrees that such other party may seek an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach, without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching party would otherwise have.
8.5. The Company acknowledges that Groupon may record phone calls with the Company for quality assurance and compliance purposes.
9. Representations andWarranties.
9.1. Mutual Representations and Warranties. Each party represents and warrants that: (a) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (b) the execution and delivery of this Agreement by it and the performance of its obligations and exercise of its rights hereunder: (i) will not conflict with or violate in any material manner, any applicable law; and (ii) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement or commitment binding upon it, including any non-disclosure, confidentiality, non-competition or other similar agreement.
9.2. Representations and Warranties of Company. Company further represents and warrants that: (a) it owns all right, title and interest in and to the Company Services, has the right to provide the Company Content for the purposes contemplated under this Agreement, and has the right to grant the License; (b) the Company Services and any updates will operate in compliance with the Documentation and this Agreement; (c) it will, and the Company Services will, remain in compliance with all applicable laws; (d) Company has obtained the express consent of each Merchant to offer Bookings via the Distribution Channels; (e) it will utilize appropriate security measures in accordance with best industry standards; and (f) in connection with exercising its rights and fulfilling its obligations hereunder (including with respect to Company Content), it will not programmatically collect content from third party websites (without the websites’ authorization) in a manner that (i) disregards any robot exclusion files or headers; (ii) intentionally circumvents any technical barriers employed by a website to prevent such collection; or (iii) violates the terms of use or policies of any third party website, API, or Affiliate’s or developer’s programs.
9.3. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF OFFERING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, UNDER THIS AGREEMENT.
10. Indemnification.
10.1. General Indemnification. Company shall defend, indemnify and hold harmless Groupon, its Affiliates and each of their Representatives (collectively, “Indemnified parties”) from and against any and all claims, suits, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) (collectively “Claims”) based upon, relating to or arising out of: (a) a breach or alleged breach of any of Company’s representations, warranties or obligations hereunder; (b) a violation of any applicable law by Company or its Representatives; (c) the negligence or willful misconduct of Company or its Representatives; (d) any Taxes (including any penalties, interest or other additions to such Taxes) arising from any Booking or the Company Services where Company has failed to properly document the tax owed or refunded to Groupon through invoices or credit notes as applicable; or (e) any agreement or relationship between Company and any Merchant.
10.2. Intellectual Property Indemnification. Company shall further defend, indemnify and hold harmless the Groupon Indemnified parties from and against any and all Claims based upon, relating to or arising out of a claim that any of the Company Services, Company Content, Company Documentation infringe, misappropriate and/or otherwise violate any patent, copyright, trademark, trade secret or other intellectual property right or privacy or publicity right of any person. If any Company Services, Company Content or Company Documentation is, or in Groupon’s reasonable opinion, is likely to be, held to be infringing (or otherwise in violation of the intellectual property rights of any person), Company shall at its expense and option either: (a) procure the right for Groupon to continue using it; (b) replace it with a non-infringing equivalent, provided such modification does not materially adversely impact the functionality of the same; or (c) modify it to make it non-infringing and reasonably acceptable to Groupon.
11. Limitations of Liability. EXCLUDING DAMAGES ARISING FROM CLAIMS FOR WHICH COMPANY IS OBLIGATED TO INDEMNIFY GROUPON, IN CONNECTION WITH COMPANY’S OBLIGATIONS UNDER SECTION 4.3 OR SECTION 8, OR ARISING FROM LIABILITIES THAT CANNOT BE EXCLUDED BY APPLICABLE LAW, OR ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER, OR ANY THIRD PARTY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS (ACTUAL OR ANTICIPATED), LOSS OF USE OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND (B) NEITHER PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL EXCEED THE AGGREGATE AMOUNT OF THE BOOKING FEES PAID AND PAYABLE TO COMPANY BY GROUPON DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
12. Insurance.
12.1. General. During the Term of this Agreement and for a period of at least twenty-four (24) months thereafter, Company shall maintain in force, with insurance companies approved by Groupon, the following insurance policies to cover such liability, or alleged liability, that may arise under or in connection with this Agreement:
12.1.1. Workers Compensation/Public insurance, or any other similar insurance, as required by all applicable statutes;
12.1.2. Commercial General LiabilityInsurance, including coverage for bodily injury, property damage, personal andadvertising injury and contractual liability, with minimum limit of liabilityof at least one million (US$1,000,000) per occurrence and two million(US$2,000,000) aggregate; and
12.1.3. Professional Liability Insurance with a minimum single limit of five million dollars (US $5,000,000), which must include coverage for network security and privacy injury liability and for any violation of federal or state regulation governing solicited or unsolicited communication.
12.2. Other Conditions. Company’s insurance shall act as primary and non-contributory with respect to any other insurance, captives or self–insurance maintained by Groupon, its Affiliates, and the Representatives of each. Company must satisfy any and all applicable deductibles or retentions applicable to their relevant insurance coverage. Company shall include Groupon as an additional insured on the Commercial General Liability policy and provide a waiver of subrogation in favor of Groupon with respect to all required coverage. Company shall provide Groupon with 30 days’ prior written notice in the event of cancellation, non-renewal or material change of any insurance coverage required hereunder. Company shall provide Groupon with a Certificate of Insurance evidencing all requirements herein.
12.3. Materiality. Failure to comply with any coverage requirements herein without Groupon’s prior consent shall be a material breach of this Agreement.
13. Publicity. Company shall not make any use of the Groupon Markswithout Groupon’s prior written consent. Neither party shall make any publicannouncements or issue any press releases or other public communications in anyform about the other party without such party’s express written consent in eachinstance; provided, that each party may disclose the existence of thisAgreement and its business relationship with the other party during the Term,including in connection with its earnings releases and calls and marketingcollateral, so long as such disclosure does not include ConfidentialInformation and is consistent with prior public disclosures (if any).
14. Governing Law; Disputes. The validity, interpretation and performance of this Agreement shall be governed by the laws of Ireland without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity or termination, shall proceed in the courts of Dublin, Ireland. Each party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each party irrevocably waives, to the fullest extent permitted by applicable law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by applicable law.
15. Notices. All notices under this Agreement will be delivered by electronic mail, and will be immediately effective as of the delivery timestamp. Notices to Groupon shall be sent to International.Contracts@groupon.com.
Miscellaneous. The parties are independent contractors and nothing herein shall be construed to create a joint venture, partnership, franchise, or agency relationship. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreement in respect thereof. Any waiver must be in writing and signed by an authorized signatory of Groupon. Company is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Groupon’s prior written consent. Groupon is authorized to transfer or 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, or by operation of law, without notice to Company. 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 are not affected.
