Card Linked Deal Merchant Terms and Conditions

Effective September 21, 2016

These Card Linked Deal Merchant Terms and Conditions (“CLD Terms”) govern and control, and are incorporated into, the Card Linked Deal Merchant Agreement between Groupon and Merchant (the “Merchant Agreement” and, together with these CLD Terms, this “Agreement”). Groupon may amend these CLD Terms in its sole discretion at any time, subject to the provisions of this paragraph. The most recent version of these CLD Terms (as may be amended by Groupon from time to time) will be available: (a) in Groupon’s Merchant Center, and/or (b) as part of the Groupon Works Merchant Newsletter. Merchant agrees that either or both of these notification methods constitute adequate notice to inform Merchant of any amendments to this Agreement, and Merchant further agrees to be bound by any such amendments to this Agreement upon such notification.

Definitions.
1. “Applicable Law” means any applicable local, state or federal law, statute, rule, regulation or order.
2. “Claim Period” means the period(s) during which the Merchant Offering may be claimed by or on behalf of customers via the Groupon Channels, as set forth in the Feature Preview.
3. “Claimed Offer” means an Merchant Offering that has been claimed by or on behalf of a customer, as described herein.
4. “Feature” means the Merchant Offering as featured on the Groupon Channels.
5. “Feature Preview” means the preview of the Feature provided by Groupon for approval by Merchant.
6. “Fine Print” means the conditions and restrictions concerning the Merchant Offering stated on the Groupon Channels, including any criteria for, or limits on, (i) Transactions that qualify for the Merchant Offering, and (ii) available Rewards, as set forth in the Feature Preview.
7. “Groupon Channels” means Groupon’s online platform available at www.groupon.com (the “Website”) and other platforms and distribution channels owned, controlled or operated by Groupon, such as emails and mobile applications.
8. “Groupon Data” means all information about customers generated or collected by Groupon or provided to Merchant by Groupon, including personally identifiable data and Transaction data (financial and otherwise, anonymized and otherwise).
9. “Marketing Fee” means the service fee Merchant shall remit to Groupon for each Claimed Offer, equal to a percentage of the aggregate Transaction Amounts, as set forth in the Merchant Agreement. In connection with “Hi Lo Deals”, the Marketing Fee will be calculated at the first specified percentage in connection with the first Transaction and at the second specified percentage in connection with each subsequent Transaction, even if the Claimed Offer is re-claimed or the Redemption Period is extended.
10. “Merchant Bank Account Information” means information about Merchant’s bank account provided to Groupon by Merchant (“Merchant Bank Account”), including Merchant Bank Account number and financial institution name and routing number, and any additional details necessary for Groupon to properly administer the Merchant Offering and collect payment in accordance with this Agreement.
11. “Merchant Data” means all information provided to Merchant directly by customers or a PPN (as defined below), not including Groupon Data.
12. “Merchant Offering” means the offering of the Rewards to Groupon’s customers and subscribers by Merchant, including the terms and conditions in connection therewith.
13. “Payment Card” means a customer’s electronic payment device, such as a credit card or debit card, linked to a Claimed Offer and used for applicable Transactions.
14. “Redemption Period” means the period(s) during which customers accrue Rewards via Transactions in accordance with the Merchant Offering, as set forth in the Feature Preview; provided that Groupon may, in its sole discretion, extend this period or automatically re-claim Claimed Offers on behalf of customers on a rolling basis, subject to (i) a customer’s request to un-link the applicable Payment Card, or (ii) termination of the Merchant Offering by either party.
15. “Remittance Amount” means, with respect to any payment period, the sum of (i) the aggregate Marketing Fees, plus (ii) the full amount of any Rewards owed to customers, in each case in connection with Transactions during such payment period.
16. “Rewards” means the portion of the Transaction Amount a customer will receive as cash back (credited against a customer’s Payment Card statement) or Groupon Bucks (as defined in the Terms of Use) in connection with a Claimed Offer, as set forth in the Feature Preview.
17. “Terms of Use” means Groupon’s Website “Terms of Use” (available at https://www.groupon.com/merchant/terms).
18. “Transaction” means each bona fide, qualifying transaction at Merchant’s point of sale by a customer using a Payment Card linked to a Claimed Offer during the Redemption Period, in accordance with the terms of the Merchant Offering.
19. “Transaction Amount” means the pre-tip amount remitted to Merchant by a customer for each Transaction, including applicable taxes collected by Merchant, equal to the lesser of the transaction authorization and settlement amounts.
Merchant Offering.
1. In General. Merchant agrees to make the Merchant Offering available to Groupon’s customers and subscribers and users of the Groupon Channels as set forth in this Agreement. Merchant Offerings may be claimed by or on behalf of Customers via the Groupon Channels during the Claim Period, and customers will receive Rewards for all Transactions. In connection with “Hi Lo Deals”, Rewards will be awarded at the high percentage for the first Transaction, and at the low percentage for each subsequent Transaction, even if the Claimed Offer is re-claimed or the Redemption Period is extended. Groupon will enter into agreements with payment processing networks (“PPNs”) that provide for PPNs to: (i) link Claimed Offers to customers’ Payment Cards; (ii) track Transactions and provide certain Transaction data to Groupon; and (iii) credit customers’ Payment Cards with Rewards in connection with any Merchant Offerings (unless the applicable Rewards consist of Groupon Bucks), subject to Merchant’s payment obligations to Groupon and applicable restrictions herein.
2. Terms of Use. Groupon is authorized, on Merchant’s behalf, to promote the Merchant Offering and allow the Merchant Offering to be claimed by or on behalf of customers subject to the terms of this Agreement and the Terms of Use, including the “Special Program” terms applicable to Card Linked Deals. If there is a conflict between this Agreement and the Terms of Use, this Agreement controls.
3. Promotion of Merchant Offering. The Merchant Offering may be promoted and/or offered, in Groupon’s sole discretion, (i) to all or part of Groupon’s subscriber base or its affiliate subscriber base or referral network and segmented by various variables, including by gender, age, location and consumer preferences; (ii) through a variety of distribution channels, including the Groupon Channels, affiliate websites, Groupon’s business partner network and other platforms or distribution channels owned, controlled or operated by Groupon’s affiliates or business partners; and (iii) during the period commencing on the Merchant Agreement Effective Date (as defined below) and ending upon termination of the Merchant Offering by either party. Groupon reserves the continuing right, in Groupon’s sole discretion, to revise the Feature or reject or discontinue any Merchant Offering, at any time and for any reason, and to terminate the Merchant Offering and remove all references to the Merchant Offering from the Groupon Channels, and redirect or delete any URL used in connection with the Merchant Offering. Merchant may terminate the Merchant Offering at any time and for any reason, upon 7 business days prior written notice to Groupon, as set forth in the Merchant Agreement.
4. Merchant Obligations. Merchant shall honor Claimed Offers through the Redemption Period. Merchant shall not inflate or manipulate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated in the Feature, including the Fine Print. Unless disclosed in the Fine Print, Merchant shall not to impose different terms or a different cancellation policy than what is imposed on its non-Groupon customers. Merchant is solely responsible for the goods and services offered or sold in connection with the Merchant Offering, and all customer service in connection therewith.
5. Appointment Based Merchant Offerings. For appointment based Merchant Offerings, Groupon may require that Merchant provide Groupon with a calendar of available appointment times and allow Groupon customers to schedule appointments with Merchant through Groupon and any third party service Groupon uses. Groupon may audit Merchant response times using various methods, including auto-dialers, call forwarding and pre-recorded calls. Without limiting anything else herein, if Groupon, in its sole discretion, determines Merchant response times or the quality of service provided to customers is unsatisfactory, Groupon may terminate this Agreement and the Merchant Offering.
6. Reporting.
  1. Upon request by Groupon, Merchant shall provide Groupon with applicable business information of Merchant, including Merchant’s identification number with applicable PPNs (each, a “Merchant ID”) and Merchant Bank Account Information.
  2. On the second business day of every calendar month (provided an Redemption Period occurred in the immediately preceding month), Groupon shall provide Merchant with an anonymized Transaction report for the immediately preceding month (each, a “Transaction Report”). Merchant shall have 7 days to dispute any data set forth in a Transaction Report by notifying Groupon in writing as to the particulars of such dispute. After such period, Merchant shall be deemed to have accepted such Transaction Report and the payments made in connection therewith as set forth in Section 3. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO ANY TRANSACTION REPORT OR ANY PAYMENT SET FORTH IN SECTION 3 MUST BE MADE IN WRITING WITHIN 7 DAYS AFTER THE DATE OF SUCH TRANSACTION REPORT OR SUCH PAYMENT (AS APPLICABLE), AND ALL SUCH DISPUTES AND CLAIMS NOT SO MADE SHALL BE DEEMED WAIVED BY MERCHANT.
  3. Merchant acknowledges that Groupon will provide the Merchant ID and other identifying data to PPNs, not including Merchant Bank Account Information.
7. Third Party Merchants. If Merchant subcontracts or delegates the performance of any of its obligations under this Agreement to any third party (each a “Third Party Merchant”), Merchant will remain solely responsible and liable for all of its obligations, including financial obligations, under this Agreement, and Merchant will be responsible for all acts and omissions of any such Third Party Merchant. Merchant will require Third Party Merchants to comply with all applicable restrictions and obligations imposed on Merchant under this Agreement, and Merchant will be solely responsible for its financial and contractual relationship with Third Party Merchants.
Payment.
1. Remittance. Merchant shall remit to Groupon the Remittance Amount as set forth herein. Marketing Fees are compensation to Groupon for advertising and promoting the Merchant Offering on behalf of Merchant. Groupon is authorized to review Merchant’s credit history, which may include a soft credit check.
2. Authorization to Debit Merchant Bank Account. Merchant authorizes Groupon to initiate (or have initiated) credit and debit entries to and from the Merchant Bank Account for all amounts due under this Agreement, including amounts due under Sections 3.a, 3.e and 3.f with respect to Transactions set forth in a Transaction Report. Debit entries will be initiated 7 days after the date of each Transaction Report, except with respect to Transactions that are disputed in accordance with Section 2.f.ii hereof. The foregoing authorization shall remain in effect until Groupon receives written notice of cancellation from Merchant; provided that, notwithstanding any cancellation of authorization, Groupon’s authority to debit the Account for amounts owed by Merchant shall remain in effect after cancellation until all amounts owed to Groupon under this Agreement are paid. Merchant shall provide prompt written notice to Groupon of any change in the Merchant Bank Account Information, and no later than 15 days prior to the next billing date. If an ACH transaction is rejected due to insufficient funds, Merchant acknowledges that Groupon may reinitiate the debit entry, and Merchant agrees to pay Groupon a fee of $25.00 for each such returned entry. Merchant acknowledges and agrees that ACH transactions are subject to Applicable Law and NACHA rules. Merchant shall not dispute or request its bank to stop payment or reject any scheduled debit entry properly initiated by Groupon in accordance with this Agreement. Any violation by Merchant of the foregoing sentence shall be a material breach of this Agreement.
3. Tax Levy. In the event Groupon receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, Groupon may, in accordance with Applicable Law, deduct any such additional amounts from Merchant Bank Account.
4. Taxes Generally. It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Groupon is not responsible for determining whether taxes apply to Merchant’s transaction with either customers or Groupon or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and customers. Merchant may be asked to provide Groupon with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so registered in connection with the Merchant Offering and the offer and sale of Merchant’s goods and services, and shall be responsible for paying any and all sales, use and other taxes related to the Merchant Offering or Merchant’s goods and services.
5. Transaction Taxes. Merchant bears sole financial responsibility for any and all sales, use, excise, general, GST or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between Groupon and Merchant (“Transaction Taxes”), if any. Groupon reserves the right to debit any applicable Transaction Taxes from Merchant Bank Account as set forth in Section 3.b. Transaction Taxes are calculated using Merchant’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current Applicable Law.
6. Withholding Taxes. If Merchant is required by tax authorities to withhold taxes in connection with any portion of the Remittance Amount, Merchant shall provide evidence of payment of such withholding taxes to Groupon no later than 60 days after payment thereof.
Term and Termination.
This Agreement is effective as of the date the Merchant Agreement is accepted and agreed to by Merchant (“Merchant Agreement Effective Date”), and will continue in effect until terminated by either party in accordance with this Section 4 (such period, the “Term”). Groupon is authorized to terminate this Agreement, at any time for any reason, upon written notice to Merchant. Merchant is authorized to terminate this Agreement upon 7 business days prior written notice to Groupon. Termination of this Agreement will not in any way affect Merchant’s obligations under this Agreement in connection with Claimed Offers. Provisions in this Agreement that are intended to survive termination in order to achieve its full effect will continue in full force and effect after the Term.
Marketing.
Groupon and its business partners may communicate with Merchant with regard to products, promotions and other services that may be of interest to Merchant. This may include email or other communications. Groupon may also solicit Merchant’s opinion for market research purposes
Intellectual Property Rights.
1. License. Merchant grants to Groupon a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sublicensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (i) Merchant’s name, logos, trademarks, service marks, domain names and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, “Merchant IP”); and (ii) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, “Third Party IP”), in each case in connection with the promotion, offer and claim of the Merchant Offering and Rewards in all media or formats now known or hereinafter developed (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Groupon’s sole discretion.
2. Groupon IP. Merchant acknowledges and agrees that, as between the parties, Groupon owns all interest in and to the Groupon Channels, Groupon Data, Groupon trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Groupon Channels, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Groupon or at Groupon’s direction, or assigned to Groupon, and any materials, software, technology or tools used or provided by Groupon to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively “Groupon IP”). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Groupon IP or any portion thereof, or use such Groupon IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Groupon grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to use one copy of Groupon’s mobile merchant software application on a single mobile computer, tablet computer or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Merchant shall keep the Groupon IP confidential, and shall not prepare any derivative work based on the Groupon IP or translate, reverse engineer, decompile or disassemble the Groupon IP. Merchant shall not take any action to challenge or object to the validity of Groupon’s rights in the Groupon IP or Groupon’s ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations under this Agreement, are not authorized to use Groupon IP in any medium without prior written approval from an authorized representative of Groupon. Merchant shall not include any trade name, trademark, service mark, domain name or social media identifier of Groupon or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any Groupon IP in a manner that could reasonably imply an endorsement, relationship, affiliation with or sponsorship between Merchant or a third party and Groupon. All rights to the Groupon IP not expressly granted in this Agreement are reserved by Groupon.
3. Merchant Feedback. If Merchant provides Groupon or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text or other information or content about a Groupon product or service or otherwise in connection with this Agreement, any Groupon IP or Merchant’s participation in the Merchant Offering (collectively, “Feedback”), Merchant irrevocably assigns to Groupon all right, title and interest in and to such Feedback. In the event the foregoing assignment is invalid for any reason, Merchant hereby irrevocably grants to Groupon and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display and distribute Feedback; (ii) adapt, modify, re-format and create derivative works of Feedback for any purpose, and sublicense the foregoing rights to any other person or entity. Merchant warrants that: (A) Feedback is Merchant’s original work or Merchant obtained Feedback in a lawful manner; and (B) Groupon and its sublicensees’ exercise of rights under the above license will not violate any person’s or entity’s rights, including any copyright rights. Merchant agrees to provide Groupon such assistance as Groupon might require to document, perfect or maintain Groupon’s rights in and to Feedback.
Confidentiality; Data.
1. Confidentiality. The terms of this Agreement are confidential between the parties, and Merchant agrees not to disclose the terms described in this Agreement to any party, other than: (i) to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis; or (ii) as required by Applicable Law, in each case, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to the applicable third parties.
2. Groupon Data. Merchant shall use Groupon Data provided to Merchant solely to fulfill its obligations hereunder in connection with the Merchant Offering, and shall not use any Groupon Data to enhance a file or list owned by Merchant or any third party. Merchant represents and warrants that it shall not (i) resell, broker or otherwise disclose any Groupon Data to any third party, in whole or in part, for any purpose; or (ii) copy or otherwise reproduce any Groupon Data, other than for the sole purpose of fulfilling its obligations under this Agreement. Merchant shall ensure that any Third Party Merchants implement and comply with reasonable security measures in handling Groupon Data.
3. Merchant Data. Merchant represents and warrants that it shall comply with all Applicable Law and Merchant’s posted privacy policy (if applicable) in connection with the collection, processing, storage, retention, use, disclosure and disposition of Merchant Data.
4. Data Breach. If Merchant becomes aware of or suspects any unauthorized access to or use of Groupon Data or any confidential information of Groupon, Merchant shall immediately notify Groupon thereof, and shall cooperate with Groupon in the investigation of such actual or suspected breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Groupon to comply with Applicable Law (including any data breach laws) or arising from any unauthorized access to or acquisition of Groupon Data while such data is in Merchant’s or a Third Party 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 Groupon Data in Merchant’s or any agent of Merchant’s possession.
5. Injunctive Relief. In the event of a breach of this Section 7, Groupon is entitled to seek injunctive relief and a decree for specific performance and any other relief allowed under Applicable Law (including monetary damages, if appropriate).
Representations and Warranties.
Merchant represents and warrants to Groupon that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) the Merchant Offering, including any terms and conditions, Fine Print, Rewards and/or goods and services offered thereunder, and Merchant’s and any Third Party Merchant’s activities in connection with the Merchant Offering, do not and will not violate any Applicable Law; (c) the execution, delivery and performance of this Agreement by Merchant do not and will not conflict with, breach, violate or cause a default under any contract, agreement, rule, directive, instrument, order, judgment or decree to which Merchant is a party or by which Merchant is bound; (d) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Groupon) the Third Party IP, and has the right to grant the License stated in this Agreement; (e) the Merchant IP and Third Party IP, Merchant’s goods and services, Groupon’s use and promotion thereof, and the results of such goods and services, will not infringe, dilute, misappropriate or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs or other intellectual property right or right of privacy or publicity of any third party, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (f) each of the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any Applicable Law; (g) the Merchant Offering, the Feature and any other advertising, promotion or offer of Merchant’s Rewards, goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any Applicable Law; (h) Merchant and its employees, contractors (including Third Party Merchants) and agents have had the proper education and training, and hold all required and up-to-date regulatory authorization, licenses and certifications, to provide all Rewards, goods and services in connection with the Merchant Offering; and (i) Merchant’s business information and Merchant Bank Account Information as provided to Groupon are accurate.
Indemnification.
To the extent allowed under Applicable Law, Merchant agrees to defend, indemnify and hold Groupon, its affiliated and related entities, and their respective officers, directors, agents and employees, harmless from and against any and all claims, lawsuits, investigations, penalties, damages, losses and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, including the representations and warranties made in this Agreement; (b) any claim for state sales, use, amusement or similar tax obligations arising from the Merchant Offering or any Transaction Taxes; (c) any claim by any local, state or federal governmental entity for unredeemed cash values or any other amounts under any applicable abandoned or unclaimed property or escheat law, including any claims for penalties and interest; (d) any claim arising out of a violation of any Applicable Law governing the Merchant Offering, the Rewards or Merchant’s goods or services; (e) any claim by a customer or any other third party arising out of or relating to the Rewards or goods and services provided by Merchant, including any claims for false advertising, product defects, personal injury, death or property damages; and (f) any claim arising out of Merchant’s collection, processing, storage, retention, use, disclosure or disposition of, or any violation of applicable data privacy or security laws in connection with, Merchant Data or Groupon Data in Merchant’s or a Third Party Merchant’s reasonable possession or control. Groupon maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Groupon and Merchant, and Merchant’s duty to defend and indemnify Groupon includes the duty to pay Groupon’s reasonable attorneys’ fees and costs, including any expert fees, in connection therewith.
Insurance.
Without limiting any other obligation or liability of Merchant under this Agreement, Merchant shall, during the Term, procure and maintain insurance coverage with terms and conditions and limits that are reasonable and prudent in the context of its business in general and this Agreement in particular, but in no event less than Commercial General Liability insurance with limits of no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
Limitations of Liability.
EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, 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 ON THE FEATURE, IS LIMITED TO THE AGGREGATE REMITTANCE AMOUNTS PAID TO GROUPON HEREUNDER FOR THE PRECEEDING 6 MONTHS, AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
Dispute Resolution.
1. Disputes. All disputes arising out of, or in any way relating to, this Agreement shall be resolved pursuant to this Section 12.
2. Binding Arbitration.
  1. EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND GROUPON ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 12 TO ARBITRATE, MERCHANT AND GROUPON ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 12). The provisions of this Section 12 shall constitute Merchant’s and Groupon’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at https://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply Applicable Law and the facts and issue a reasoned award.
  2. To begin an arbitration proceeding, Merchant or Groupon must comply with the limitations provision set forth in Section 11 and submit the Dispute by making a demand for arbitration, as detailed at https://www.adr.org. If Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: C T Corporation System, 208 S. LaSalle Street, Suite 814, Chicago, IL 60604. If Groupon demands arbitration, it shall simultaneously send a copy of the completed demand to Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA rules. Groupon will reimburse those fees for Disputes totaling less than $10,000 if Merchant is the prevailing party in such arbitration. Groupon will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions, unless Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines that an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines or Groupon agrees that the matter should proceed in the county of Merchant’s principal place of business.
3. Class Action Waiver. EACH PARTY AGREES THAT IT SHALL BRING ANY DISPUTE AGAINST THE OTHER PARTY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, EACH PARTY AGREES THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
4. Choice of Law/No Jury Trial. If for any reason a Dispute proceeds in court: (i) Merchant and Groupon agree that any such Dispute may only be instituted in a state or federal court in Cook County, Illinois; (ii) Merchant and Groupon irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant and Groupon agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Illinois, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT AND GROUPON AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
5. Injunctive Relief/Attorneys’ Fees.
  1. Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court
    seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
  2. In the event Groupon is the prevailing party in any Dispute, subject to any exceptions in this Section 12, Merchant shall pay to Groupon all reasonable attorneys’ fees and costs incurred by Groupon in connection with any Dispute.
Other.
1. Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise or agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.
2. Entire Agreement. 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.
3. Interpretation. The headings preceding the text of the sections of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning of this Agreement. The singular number shall include the plural and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated. References throughout to this “Agreement” include any exhibits or attachments, unless otherwise stated.
4. Assignment. Merchant 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. Any waiver must be in writing and signed by an authorized signatory of Groupon. Groupon is authorized to transfer and 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 to which this Agreement relates, or by operation of law, without notice to Merchant.
5. Severability. 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.
6. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING 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 GROUPON CHANNELS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE FEATURE IS ERROR-FREE OR THAT THE MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.

Card Linked Deal Merchant Terms and Conditions

Subscribe for Updates