Groupon Stores Merchant Agreement

This Groupon Stores Merchant Agreement (this “Agreement”) is an agreement between you (as defined below) and Groupon Goods, Inc. (“Groupon,” “we,” “our,” or “us”) and contains the terms and conditions that govern your access to and use of the Groupon Stores Services (as defined below). You (as defined below) and Groupon may each be referred to individually as a “Party”, and together as the “Parties”.

By checking the box and clicking “Accept”, you are indicating that you agree to all of the terms and conditions of this Agreement. You additionally represent that you lawfully are able to enter into this Agreement on your own behalf or if you are entering into this Agreement on behalf of a legal entity, that you have the authority to bind such entity and that this Agreement is fully binding upon the entity. Groupon, subject to the provisions of this paragraph, may amend the Agreement in its sole discretion and at any time. The most recent version of this Agreement (as may be amended by Groupon from time to time) will be available: (i) in the Groupon Stores Portal, and/or (ii) as part of a Groupon Stores merchant newsletter and/or any similar email communication sent by Groupon to Groupon Stores merchants (including you). You agree that either or both of these notification methods constitute adequate notice to inform you of any amendments to this Agreement, and you further agree to be bound by any such amendments to this Agreement upon such notification.

1. Defined Terms. As used in this Agreement, the following terms have the following meanings:

1.1 “Affiliate” means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, a specified Person.

1.2 “Applicable Law” means any federal, state, and local laws, rules, regulations, and orders applicable to a Party.

1.3 “Business Days” means all days other than Saturday, Sunday, and those days recognized as national holidays by the United States government.

1.4 “Chargebacks” are Your Transactions for which Groupon does not receive payment from the credit card company or has such payment reversed by the credit card company due to a dispute of the payment by a Purchaser.

1.5 “Customer Data” means, collectively, Order Information and any other data or information acquired by you or your Affiliates from Groupon, its Affiliates, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement, or the parties’ performance under this Agreement.

1.6 “Expected Ship Date” means either: (a) two (2) Business Days after a Product is purchased; or (b) the delivery timeframe stated at the time of purchase.

1.7 “Groupon Channels” means the Groupon Website and other distribution channels owned, controlled or operated by Groupon, including emails, mobile applications, or other types of electronic offerings, and/or online platforms or distribution channels owned, controlled, or operated by Groupon’s Affiliates or third party business partners.

1.8 “Groupon Community” means Groupon’s subscriber base and non-subscriber customers, including the communities associated with Groupon’s Affiliates.

1.9 “Groupon Stores Portal” means the online portal and tools made available by Groupon to you for your use in managing your inventory, Your Transactions, and your presence for the Groupon Stores Service.

1.10 “Groupon Website” means Groupon’s online platform, located at www.groupon.com.

1.11 “Net Refunds” means the amount Groupon had originally paid you for the applicable Your Transaction being refunded to a Purchaser (i.e. Sales Proceeds – Fees) plus the Refund Administration Fee.

1.12 “Offer Value” means the actual, regular value of the Product.

1.13 “Order Information” means, with respect to any of your Products ordered through the Groupon Stores Service, the Purchaser contact information and shipping information that we provide or make available to you.

1.14 “Person” means an individual or a partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency or political subdivision thereof, or other entity.

1.15 “Product” means any product or service (including warranties, extended service plans, and any other related offerings) that you offer through the Groupon Stores Service.

1.16 “Purchaser” means a member of the Groupon Community who has purchased a Product and fully paid the Sales Proceeds.

1.17 “Refund Administration Fee” means twenty-five percent (25%) of the applicable Stores Fee.

1.18 “Sales Proceeds” means the gross proceeds from any of Your Transactions, including all shipping and handling, gift-wrap, and other charges (if offered by Groupon), and including taxes and customs duties (to the extent those are selected by you to be collected by Groupon in accordance with this Agreement).

1.19 “Third Party Merchant” means any third party service provider that you engage to assist you with fulfilling your obligations under this Agreement.

1.20 “you” and “your” means the applicant (if registering for or using the Groupon Stores Service as an individual), or the business employing the applicant (if registering for or using the Groupon Stores Service as a business) and any of its Affiliates.

1.21 “Your Transaction” means any sale of your Product(s) through the Groupon Stores Service.

2. Groupon Stores Services. Groupon, under the brand “Groupon Stores,” is offering a service that allows you, as a merchant, to offer certain products for sale to consumers through certain Groupon Channels (the “Groupon Stores Service”). To use the Groupon Stores Service, you must complete the registration process, which will require you to provide certain information, such as your legal name, tax identification number, address, phone number, e-mail address, and account information for your bank account (“Your Bank Account”). Groupon shall determine, in its sole discretion, all aspects of the Groupon Stores Service, including whether to cease providing any or all aspects of it and its content, appearance, and functionality. In addition, Groupon may at any time, in its sole discretion, reject, remove or suspend any or all of your Products offered for sale through the Groupon Stores Service.

3.1 Feature Pages and Store Page. As part of the Groupon Stores Service, you will be able to create listings for each product you offer for sale through Groupon Stores Service which Groupon may, in its sole discretion, turn into a webpage presented by Groupon to the Groupon Community, and the public in general, in various potential formats offering your Product(s) (each a “Feature Page”). In addition, if made available, in Groupon’s sole discretion, you or Groupon may also create a landing page that contains all Products you currently offer for sale through Groupon (“Store Page”). Groupon reserves the continuing right to: (a) reject, revise, or discontinue any Feature Page or Store Page, including any product listings thereon, at any time and for any reason in Groupon’s sole discretion; (b) to terminate any product listings and to remove all references to the product listings, Feature Page, or Store Page from the Groupon Channels; and (c) redirect or delete any URL used in connection with the product listings, Feature Page, or Store Page.

3.2 Product Information. There is certain information about your Products that we require you to provide as part of the listing process. If a particular Product is already offered for sale through Groupon, some of the product information may be automatically populated for you (“Existing Product Information”). Notwithstanding the foregoing, by listing a product using Existing Product Information, you agree that such information is accurate and that for purposes of this Agreement, such information shall be treated as if it is content provided by you. You are responsible for promptly updating all Product information as necessary to ensure it at all times remains accurate and complete. If you discover any mistake, inconsistency, typographical error, etc. in the Existing Product Information, you can reach out to storesvendors@gwdev for assistance.

3.3 Prohibitions on Sale. You shall not provide any information for, or otherwise seek to offer for sale through the Groupon Stores Service, any and all illegal or counterfeit products and/or the items described on the applicable excluded or restricted products pages in the Groupon Stores Portal or any other information made available to you by Groupon. Your Products, including packaging, and your offer and subsequent sale of any of the same through the Groupon Stores Service shall not violate Applicable Law including all minimum age, marking, and labeling requirements, and shall not contain any pornographic, hate-related, or violent content or content that promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. You shall not provide or include any website links for use, or request that any website link be used, on any Feature Page or a Store Page.

3.4 Online Terms. All Products shall be sold in accordance with, and subject to, Groupon’s “Terms of Sale” posted and available on the Groupon Website, as a section of the “Terms of Use” or otherwise, as may be amended by Groupon from time to time in Groupon’s sole discretion (the “Online Terms”). It is your responsibility to routinely monitor and review the Online Terms to ensure your compliance with this Agreement.

4.1 Shipping and Handling Charges. For every Product, you will determine shipping and handling charges via, and subject to, our standard functionality and categorizations of products.

4.2 Order Processing. We will process all sales of your Products made through the Groupon Stores Service and collect the applicable Sales Proceeds on your behalf. After a sale, we will provide you with the applicable Order Information so you can fulfill the order. You agree that, if requested by Groupon, you will use commercially reasonable efforts to stop or cancel pending orders of your Products. Neither Purchasers nor Groupon shall be charged for stopped or canceled orders.

5.1 Sale and Fulfillment. You understand that, except for payment processing, you, and not Groupon, are responsible for, and bear all risks of loss associated with, all aspects of the sale of your Products and fulfillment of Your Transactions, including: sourcing your Products, retrieving Order Information, packaging your Products for shipment and delivery, including Groupon approved packing slips within all shipments, meeting or exceeding Expected Ship Dates, providing Shipment Tracking Information to Groupon, and complying with all information provided to the Purchaser regarding the Product at the time of sale. For sake of clarity, at no point in time shall the title to, or risk of loss for, the Product transfer to Groupon.

5.2 Delivery Tracking. For each of Your Transactions that you are shipping to the Purchaser, you must ship and deliver the Products by the Expected Ship Date and must provide to Groupon the shipping information for each of the Products, including a tracking number that can be used to determine where the package is in transit and the estimated delivery date (the “Shipment Tracking Information”) and a return address. Groupon may, in its sole discretion, choose to display the Shipment Tracking Information to Purchasers.

5.3 Product Pick Up.

5.4 Cancellations, Returns and Refunds. For all of Your Transactions, you will accept and process cancellations, returns, refunds, and adjustments in accordance with this Agreement, the Online Terms, Applicable Law, and the policies stated on the Feature Page published at the time of the applicable order, including the “Fine Print”. If functionality is available in the Groupon Stores Portal, you will determine the amounts to be refunded (less all applicable deductions) by you and issue such refund to the Purchaser. If the foregoing functionality is not available in the Groupon Stores Portal, you will work in good faith with Groupon on all refund requests. You shall not impose a return or refund policy on Purchasers that is more restrictive than your regular return or refund policy as applied in the ordinary course of your business. You will route all refund payments to Purchasers in connection with Your Transactions through Groupon. We will provide those payments to the Purchaser (which may be in the same payment form originally used to purchase your Product). We will either hold back all amounts we pay for such refunds from your next payment or invoice you for such amounts after we complete the refund. You will promptly pay any invoices for refunds and adjustments that you are obligated to provide under the applicable Feature Page and as required by Applicable Law, and in no case later than thirty (30) days after the obligation arises.

5.5 Delivery Errors and Nonconformities; Recalls. You are solely responsible for correcting, via refund or replacement, any delivery error or non-conformity of your Products, including non-performance, non-delivery, mis-delivery, theft, mistakes in picking and/or packing your Product, or other mistake or act in connection with the fulfillment of Your Transactions. You are also solely responsible for any and all legal notifications, refunds, replacements, or similar obligations, for defects in your Product, including any public or private recalls thereof, and will notify us as soon as you have knowledge of any such defects and/or potential recalls. You will also make all reasonable efforts to work with any governmental agency to issue any notifications, refunds, replacements, or undertake any similar obligations, to the extent required by Applicable Law, and to notify customers of the same in a timely manner.

5.6 Customer Service. You are solely responsible for all customer service related to the Products and your performance, or non-performance, of any of your obligations related thereto or under this Agreement. You shall use all commercially reasonable efforts to respond to all customer complaints or inquiries submitted through the Groupon Stores Service within two (2) business days.

6.1    Your Price. You are free to determine which of your Products you wish to offer through the Groupon Stores Service; provided, however, that (i) all Products you list must be at your lowest available price and must be lower than the Offer Value; and (ii) You shall disclose all and not charge or impose any extra or additional fees. If the Products are available through other sales channels at the same or a lower price, Groupon reserves the right to remove the Product listing.

6.2    Promotional Programs. In an effort to incentivize sales of your Products, you authorize Groupon, at any time and in Groupon’s sole discretion, to decrease the purchase price for your Product(s) (any such effort, “Promotional Program(s)”).

Promotional Programs include the following:

a. Promotional Codes. A “Promotional Code” is a code that Purchasers may use, in Groupon’s sole discretion, to receive a discount on the purchase price of one or more of your Products.

a. Price Optimization. “Price Optimization” is any change to the purchase price of one or more of your Products, excluding Promotional Codes.

The application of Promotional Programs to any of your Products shall not affect your payment(s), as more fully described in Section 7 below, if any, for Your Transactions related to such Products.

You may opt out of Promotional Programs for all of your Products by indicating your decision to opt out using the functionality provided to you by Groupon in the “Business Info” section of the Groupon Stores Portal. Additionally, you may individually opt any of your Products out of, or in to, Promotional Programs by indicating your decision with respect to such Product(s) using the functionality provided to you by Groupon in the “Product Options” section of the Groupon Stores Portal.

7.1 Fees. In exchange for the services provided by Groupon under this Agreement, you agree to pay to Groupon a fee based on Your Transactions, which shall be specified in your Groupon Stores Portal, (the “Stores Fees”), the Refund Administration Fee, and any other fees that may be specified by Groupon in your Groupon Stores Portal (“Other Fees”, collectively with Stores Fees “Fees”). You authorize Groupon to withhold all Fees from any and all Sales Proceeds Groupon may owe to you, as calculated under Section 7.2 below.

7.2 Payment Terms. Payments will be calculated twice a month, once for the period of time from the 1st-15th and again for the period of time from the 16th – the end of the applicable month (each a “Pay Period”). Groupon will process payment ten (10) business days after the end of each Pay Period; provided that you understand that such remittance may be delayed if you change Your Bank Account. Only once you upload tracking information into the Groupon Stores Portal for the Product(s) for Your Transaction(s), Groupon has verified such tracking information to Groupon’s reasonable satisfaction, and such verified tracking information confirms active shipment movement for such Product(s), such of Your Transaction(s) will become a “Payment Eligible Transaction”. Payments will be calculated as follows: Sales Proceeds from Your Transactions that became Payment Eligible Transactions during the Pay Period less: Net Refunds issued during the Pay Period for Your Transactions; Fees for all of Your Transactions during the Pay Period; Chargebacks; Transaction Taxes; and any other amounts that, under this Agreement or Applicable Law, Groupon is required, or authorized, to withhold or deduct from your payments, including, any Taxes or Tax Levies as described in Section 14.

7.3 Payment Method. All payments to you will be remitted to Your Bank Account through a banking network or by other means specified by us. Except as otherwise stated in your Groupon Stores Portal, all amounts contemplated under this Agreement shall be in U.S. Dollars. Groupon is authorized to initiate ACH credit transaction entries to Your Bank Account. Only in the event of an error, Groupon is authorized to initiate debit entry adjustments to Your Bank Account to the extent necessary to correct any error. You hereby acknowledge that Groupon’s origination of all ACH transactions to Your Bank Account must comply with Applicable Law. ACH payments may take up to five (5) business days to become available in Your Bank Account after processing.

7.4 Transaction Limits. You understand and agree that Groupon may, in its sole discretion, impose transaction limits on some or all Purchasers or merchants using the Groupon Stores Service (including you), which may relate to either the number of transactions during a period of time or the cumulative value of purchases during a period of time.

7.5 Other. Groupon reserves the right to obtain credit reports about you from time to time and you will provide Groupon with any requested documentation for Groupon to do so. In addition to any other rights that may be available to Groupon under this Agreement, for any amounts you owe to Groupon (including if erroneous or duplicate transactions are discovered), Groupon may setoff such amount against any payment Groupon may owe you or debit Your Bank Account for such amount. Groupon reserves the right to withhold payments to you at any time if Groupon determines, in its sole discretion, that your action, inaction, performance, or non-performance may result in claims (including returns or Chargebacks) or disputes involving Groupon. Furthermore, Groupon shall have no obligation to advance amounts that have been paid to Groupon by a Purchaser until you have complied with your obligations under this Agreement. If Groupon reasonably believes that you have breached any provision of this Agreement, Groupon may offset, delay, withhold, or suspend future payments to you, in Groupon’s sole discretion. In addition, if you are unwilling, or in Groupon’s reasonable discretion appear unable, to perform your obligations under this Agreement, Groupon is authorized to offset, delay, withhold, or suspend future payments to you in addition to such other remedies as may be available under this Agreement, or at law, to secure payment from you for any refunds and/or other amounts payable by you under this Agreement.

8.1 Term; Termination. This Agreement shall commence on the date you complete registration for use of the Groupon Stores Service and will end when terminated in accordance with this Agreement (the ”Term”). Groupon may terminate this Agreement at any time for any reason. You may terminate this Agreement at any time for any reason by the means then specified by Groupon in the Groupon Stores Portal.

8.2 Effect of Termination.  Termination of this Agreement or suspension of the Groupon Stores Service shall not affect your obligations hereunder pertaining to Your Transactions, including fulfillment, delivery, returns, refunds, and/or recalls. Termination or suspension of the Groupon Stores Service will not terminate or suspend any other service provided by Groupon unless explicitly provided. Upon termination, all provisions of this Agreement intended or required to survive the termination or expiration of this Agreement in order to achieve its full effect, shall survive termination, including Sections 1, 5.5, 8, 10, 11, 12, 15, 16, 17, 20, and 21.

9. License. You grant to Groupon a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and fully sublicensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, transmit, publish, publicly perform adapt, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner: (a) your name, logo, trademarks, domain names, and any photographs, graphics, artwork, text, and other content provided or specified by you (collectively, “Your IP”); and (b) any third party’s name, logo, trademarks, domain names, photographs, graphics, artwork, text, and other content provided or specified by you (collectively, “Third Party IP”) in any and all media or formats now known or hereinafter developed, including the Groupon Channels (the “License”). You acknowledge that any use of Your IP or Third Party IP as contemplated herein is within the sole discretion of Groupon and Groupon may decide not to use Your IP or Third Party IP at all. To the extent that we may have the right to use Your IP or Third Party IP under Applicable Law without a license from you (i.e. fair use, a valid license from a third party, etc.), nothing in this Agreement will prevent or impair such use. In addition, Groupon may use Your IP and/or Third Party IP in general marketing materials related to Groupon services without your prior written consent.

10. Representations, Warranties and Covenants. You represent, warrant and covenant to Groupon now and throughout the Term that:

10.1 You have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement;

10.2 You are duly organized, validly existing, and in good standing under the laws of your jurisdiction of formation; and are duly qualified to do business and are in good standing in each jurisdiction where the conduct of your business, provision of Products, or the ownership of your property requires such qualification;

10.3 This Agreement is the legal, valid, and binding obligation of you, enforceable against you in accordance with its terms;

10.4 You are not a party to any agreement or instrument, or subject to any charter or other corporate restriction, or any judgment, order, writ, injunction, decree, rule, or regulation which materially and adversely affects, or so far as you can now foresee, may in the future materially and adversely affect, your business operations, prospects, properties, assets, or condition, financial or otherwise, or your ability to legally and properly perform under this Agreement;

10.5 If you are unable to fulfill your obligations under this Agreement or to any Purchaser for any reason, you will immediately notify Groupon and take prompt action to remediate such failure;

10.6 You are registered for the collection of sales, use, and other similar taxes in all states and localities in which you are required to be so registered pursuant to the terms of this Agreement and in connection with fulfilling your obligations hereunder;

10.7 You and your employees, contractors, agents, and Third Party Merchants have had the proper education and training, and hold all required and up-to-date regulatory authorization, licenses, and certifications relating to any Products and any of your activities related to this Agreement;

10.8 You: (a) will have in stock a number of units of Products sufficient to fulfill your obligations for so long as you offer the Product for sale; (b) are able to and will ship the purchased Products to each Purchaser by the Expected Ship Date; and (c) are able to and will have available for pick up each Pick-Up Eligible Product purchased in a Pick-Up Transaction;

10.9 The Products: (a) are free from defects in workmanship, materials and design; (b) are genuine, bona fide products as described in this Agreement; and (c) do not violate the rights of any third party;

10.10 You have the full right, power, and authority to offer, promote, and sell, and authorize Groupon to offer and promote, the Products as set forth in this Agreement;

10.11 This Agreement, the Products, including any marketing or promotion of the Products contemplated hereunder, and any of the information you provide to Groupon, including your name, Your IP, and any Third Party IP, shall not violate any rights of any third party, including the manufacturer of the Products (if applicable) or any other third party with which you have entered into a prior agreement, or any other agreement to which you are a party;

10.12 With respect to the Offer Value: (a) the amount represented by you as the Offer Value of the Product is the actual, regular value of the Product and is an accurate valuation of the regular retail price of the Product; (b) you have not inflated or increased the Offer Value; and (c) you will not otherwise manipulate pricing or values in any way that is unfair, deceptive, misleading, and/or outside the ordinary course of business;

10.13 The terms and conditions of the Products, including the offer, discount, sale, and shipment or pick up thereof, comply with all, and do not and will not violate any, Applicable Law;

10.14 You and all of your subcontractors, agents, suppliers, and Third Party Merchants shall comply with all Applicable Law in your performance of your obligations and exercise of your rights under this Agreement;

10.15 Any information provided or made available by you or your Affiliates to Groupon or its Affiliates is at all times accurate and complete, including, Shipment Tracking Information, the description of and any information relating to the Products, any information relating to Your Bank Account, and any information related to each Pick-Up Site;

10.16 Any advertising or promotion of the Products contemplated hereunder will not constitute false, deceptive, or unfair advertising or disparagement under any Applicable Law;

10.17 You own all right, title and interest in and to Your IP, have licensing rights in (with the right to sublicense to Groupon) the Third Party IP, and have the right to grant the licenses set forth in this Agreement;

10.18 Your IP and the Third Party IP, and Groupon’s use thereof, do not violate any copyright, trademark, service mark, trade name, or other intellectual property right, or right of privacy or publicity, of any third party or any Applicable Law;

10.19 Neither Your IP nor the Third Party IP includes 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 local, state, provincial, territorial, or federal law, statute, rule, regulation, or order;

10.20 You own, operate, or control each Pick-Up Site, and/or have the right to conduct the activities and undertake the obligations in this Agreement related to such Pick-Up Site;

10.21 Each Pick-Up Site has all required and up-to-date authorizations, licenses, and certifications relating to the operation of such Pick-Up Site, including the activities and obligations related thereto in this Agreement;

10.22 You are the person or entity authorized to receive any payments made to you by Groupon under this Agreement;

10.23 (a) You are not authorized to resell, broker, or otherwise disclose, any Customer Data to any third party, in whole or in part, for any purpose; and (b) you are not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling your obligations under this Agreement (including shipping Products to Purchasers); and

10.24 You are familiar with and shall comply with: (a) the U.S. Foreign Corrupt Practices Act, which prohibits providing a payment of money or anything of value to a foreign government official, public international organization official, foreign political party, foreign political party official or candidates for such offices, either directly or indirectly, for the purpose of influencing official acts and decisions (including failures to act and decide) in order to assist in obtaining or retaining business or directing business to any entity, and any provisions of local law and Groupon’s policies and procedures related thereto; and (b) all Applicable Law regarding imports and exports, including any Applicable Law of the United States regarding unsanctioned foreign boycotts, anti-boycott laws, and embargoed countries.

11. Indemnification. You agree to defend, indemnify, and hold Groupon, its Affiliates, and their respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses, or expenses (including reasonable attorney’s fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by you of this Agreement, including the representations, warranties, and covenants set forth in this Agreement; (b) your fraud, negligence, or willful misconduct; (c) any claim for Taxes (as defined in Section 14 below); (d) the materials you provide, or otherwise recommend or direct, to Groupon in connection with the Products, including Your IP and the Third Party IP; (e) any infringement, misappropriation, or other violation of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by you, including in connection with Your IP or the Third Party IP, or Groupon’s use thereof; (f) your provision of incomplete or inaccurate information applicable to the Feature Page, Store Page, Pick-Up Site(s), or Products; (g) the Feature Page, Store Page, Pick-Up Site(s) or Products, or your services or obligations related thereto or otherwise related to this Agreement, including any claims for false advertising, product defects, personal injury, death, or property damages; (h) any violation of Applicable by you or governing your Products, Pick-Up Site(s), and/or services; (i) any violation by you of any law or regulation governing the use, sale, and distribution of alcohol; (j) any claim by a Purchaser for the Sales Proceeds; (h) your misuse of Customer Data, or any violation of an applicable data privacy or security law by you. 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 you. Your duty to defend and indemnify Groupon includes the duty to pay Groupon’s reasonable attorneys’ fees and costs, including any expert fees. Without limiting the foregoing, you shall pay any monies owed to any party, as well as all reasonable attorneys’ fees, related to any action or determination against Groupon in connection with any action to pursue Groupon for Taxes.

12. LIMITATION OF LIABILITY. IN NO EVENT SHALL GROUPON BE LIABLE UNDER ANY THEORY TO YOU OR YOUR EMPLOYEES, AGENTS OR THIRD PARTY MERCHANTS, OR ANY THIRD PARTY, FOR ANY LOST PROFITS, LOST BUSINESS, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST DATA, AND COST OF COVER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT GROUPON WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL GROUPON’S LIABILITY FOR ANY CLAIMS ARISING OUT OF RELATING TO THIS AGREEMENT, OR ANY ERRORS OR OMISSIONS IN CONNECTION WITH THE FEATURE PAGE, STORE PAGE, PICK-UP SITE(S), OR PRODUCTS, EXCEED AT ANY TIME THE TOTAL UNCONTESTED AMOUNTS EARNED AND RETAINED BY GROUPON IN CONNECTION WITH THIS AGREEMENT DURING THE PRIOR SIX MONTH PERIOD. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

13. Insurance. You: (a) have, and shall maintain at your expense and at all times during the Term, all types of liability insurance policies, with coverage in amounts that are customary for merchants or service providers in your trade area, consistent with best industry practices and sufficient to fully comply with Applicable Laws and fulfill your obligations under this Agreement; and (b) upon Groupon’s request, shall provide proof of your maintenance of such policies and provide assurances that indicate that Groupon will be covered by your insurance policies in the event of a claim arising under or in relation to this Agreement or the Products.

14.1 Generally. It is your responsibility to determine what, if any, taxes apply to the payments you make or receive under this Agreement, and it is your responsibility to collect, report, and remit the correct tax to the appropriate tax authority. Groupon is not responsible for determining whether taxes apply to your transaction with either Purchasers or Groupon, or for collecting, reporting, or remitting any taxes arising from any transaction with or by you and Purchaser. Notwithstanding anything else in this Agreement, you shall be, and will remain, registered for and responsible for paying any and all sales, use, and/or other similar tax collection purposes in all states and localities in which you are required to be so registered in connection with the sale of the Products.

14.2 Transaction Taxes. You bear 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 you (“Transaction Taxes”, collectively with the taxes contemplated by Section 14.1 the “Taxes”), if any. Groupon shall apply the applicable Transaction Tax to the Fees remitted to Groupon (but not to the amounts of taxes collected as contemplated by Section 14.1) pursuant this Agreement. Transaction Taxes are calculated using your billing address. 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 law.

14.3 Tax Levies. In the event Groupon receives written notice of a validly issued state or federal tax levy related to past-due Taxes you owe, Groupon may, in accordance with Applicable Law, deduct such amounts from payments due to you. Groupon may be required by tax authorities to withhold taxes on your behalf. Groupon reserves the right to deduct any such taxes from amounts due to you 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 of payment of withholding taxes to you no later than sixty (60) days after payment of the withholding taxes.

14.4 Cooperation. You and Groupon agree to reasonably and in good faith cooperate and assist each other in determining and administering each party’s collection and remittance responsibilities in connection with this Agreement and with any and all audits and/or reviews administered by taxing authorities that may arise in connection with this Agreement.

14.5 Alcohol and Tobacco. You bear sole responsibility for collecting and remitting all taxes imposed on or arising from Your Transactions associated with alcohol and tobacco at the time of Purchaser pickup. Functionality will not be available for you to collect tax on any portion of transactions involving alcohol and tobacco related Products. You agree to indemnify Groupon of any Taxes, penalties, or interest that may be assessed upon Groupon in connection with this Agreement.

15. Confidentiality. You agree to keep confidential (a) the terms of this Agreement (including the Stores Fee), (b) any materials, documents, or information designated by Groupon as “confidential” or with a similar designation, (c) all Customer Data, and (d) any materials, documents, or information that you should reasonably expect to be confidential or proprietary under the circumstances and/or given the nature of the materials, documents or information (collectively, “Confidential Information”). You shall take reasonable precautions to protect all Confidential Information and will only disclose Confidential Information to Third Party Merchants, subject to Section 21.9 below, and your employees on a need-to-know basis. If you become aware of any unauthorized use or disclosure of Confidential Information, you shall promptly and fully notify Groupon of all facts known to you concerning such unauthorized use or disclosure and shall cooperate with Groupon so that Groupon may seek a protective order or other appropriate remedy to protect such Confidential Information. You will bear all associated expenses incurred by Groupon to comply with Applicable Law (including any data breach laws) or arising from any unauthorized access or acquisition of Confidential Information while the same is in your possession. Upon Groupon’s written request, you shall return to Groupon or destroy, at Groupon’s option, all Confidential Information in your possession or control. You acknowledge and agree that a breach of your confidentiality obligations under this Agreement will entitle Groupon to injunctive relief and a decree for specific performance and any other relief allowed under Applicable Law. Without limiting the foregoing, you agree that you shall not issue any press release or other public statement or make any social media posting relating to your relationship with Groupon or this Agreement without the express prior written consent of Groupon.

16. Groupon IP. You acknowledge and agree that Groupon owns all right, title, and interest in and to the Groupon Website, Groupon Stores Service, the Groupon name, logos, trademarks, domain name, all data collected through or from the Groupon Stores Service (including Customer Data), and any software, technology, or tools used by Groupon to promote, market, sell, generate, or distribute the Products (collectively the “Groupon IP”), other than Your IP and the Third Party IP. For the avoidance of any doubt, no license in the Groupon IP is being granted hereunder. You shall not use, sell, rent, lease, sublicense, distribute, transfer, transmit, reproduce, download, display, modify, perform, 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. You shall not prepare any derivative work based on the Groupon IP or translate, reverse engineer, decompile, or disassemble the Groupon IP. Except as specifically provided herein, you may not use, nor may you authorize any Third Party Merchant to use, Groupon IP in any medium without prior written approval from Groupon. You 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.

17.1 Subject to Section 17.2 below, you may use Customer Data for the sole purpose of fulfilling your obligations under this Agreement (including shipping Products to Purchasers). You expressly agree that Groupon owns all Customer Data and that any Customer Data that may be provided hereunder is being provided solely to fulfill your obligations hereunder and may not be used to enhance a file or list owned by you, any Third Party Merchant, or any third party. You represent, warrant, and covenant that you will not, nor will you permit any Third Party Merchant to, resell, broker, or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. You agree that you will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling your obligations hereunder.

17.2 For purposes of this Agreement, the restrictions set forth in Section 17.1 on your use of Customer Data do not apply to: (a) data from any Purchaser who is already your customer prior to the effective date of this Agreement, to the extent such data was previously provided to you by such Purchaser independent of this Agreement or any transaction hereunder; or (b) data supplied by a Purchaser directly to you who becomes your customer in connection with such Purchaser explicitly opting in to receive communications from you for the purposes for which such Customer Data will be used by you; provided that you handle and use such Customer Data in compliance with Applicable Law and your posted privacy policy.

17.3 You shall immediately notify Groupon if you become aware of, or suspect, any unauthorized access to, or use of, Customer Data or any Confidential Information, and shall cooperate with Groupon in the investigation of such unauthorized access or use and the mitigation of any damages related thereto. You shall bear all associated expenses incurred by Groupon to comply with Applicable Law related to such unauthorized access or use, including any data breach laws, or arising from any unauthorized access to, or acquisition of, Customer Data or Confidential Information while such data is in your reasonable possession or control. Upon termination or expiration of this Agreement, you shall, as directed by Groupon, destroy or return to Groupon all Customer Data in your, or any of your agent’s, possession.

18. Feedback and Other Information. If you provide 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 your participation in the Groupon Stores Service (collectively, “Feedback”), you irrevocably assign to Groupon all right, title, and interest in and to Feedback. In the event your assignment to us is invalid for any reason, you hereby irrevocably grant 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; and (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. You warrant that: (A) Feedback is your original work or you obtained Feedback in a lawful manner; and (B) Groupon and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide Groupon such assistance as Groupon might require to document, perfect, or maintain Groupon’s rights in and to Feedback.

19. Password Security. You must safeguard your password and supervise your use of the Groupon Stores Portal and all information concerning Your Transactions and use of the Groupon Stores Portal (together your “Account”). You are solely responsible for maintaining the security of your Account and maintaining settings that reflect your preferences. We will assume that anyone using your Account is you. You agree that you are solely responsible for any activity that occurs under your Account.

20. Dispute Resolution. All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 20, “Dispute Resolution”.

20.1 Binding Arbitration. EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN YOU AND GROUPON ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 20 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 20). The provisions of this Section 20 shall constitute yours 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.

To begin an arbitration proceeding, you or Groupon must comply with the limitations provision set forth in Section 12 and submit the Dispute by making a demand for arbitration as detailed at https://www.adr.org. If you demand arbitration, you shall simultaneously send a copy of your 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 your address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Groupon will reimburse those fees for Disputes totaling less than $10,000 if you are the prevailing party in such arbitration. Groupon will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that your Dispute is frivolous. The arbitration will be conducted based upon written submissions unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines, or you and Groupon agree, that the matter should proceed in the county of your principal place of business.

20.2 Class Action Waiver. YOU AND GROUPON EACH AGREE THAT EACH PARTY SHALL BRING ANY DISPUTE AGAINST THE OTHER IN YOURS OR GROUPON’S RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR AS AN ASSOCIATION. IN ADDITION, YOU AND GROUPON EACH AGREE 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.

20.3 Choice of Law. If, for any reason, a Dispute proceeds in court: (a) you and Groupon agree that any such Dispute may only be instituted in a state or federal court in Cook County, Illinois; (b) you and Groupon irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; and (c) you 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.

20.4 No Jury Trial. YOU AND GROUPON EACH AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

20.5 Injunctive Relief. 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.

20.6 Attorneys’ Fees. In the event Groupon is the prevailing party in any Dispute, subject to any exceptions in this Section 20, you shall pay to Groupon all reasonable attorneys’ fees and costs incurred by Groupon in connection with any Dispute.

21.1 Marketing. Groupon and its business partners may communicate with you with regard to products, promotions, and other services that may be of interest to you. This may include email or other communications. Groupon may also solicit your opinion for market research purposes.

21.2 Notices. When you use the Groupon Stores Service or send emails to Groupon, you are communicating with us electronically and consent to receive electronic communications related to your use of the Groupon Stores Service. We will communicate with you by email or by posting notices on the Groupon Stores Portal. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. Notices from us will be considered delivered to you and effective when sent to the email address you provide through the Groupon Stores Portal or from which you otherwise email us. You must send all notices and other communications relating to Groupon Stores Service to storesvendors@gwdev.

21.3 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement is to be construed to create a partnership, joint venture, franchise, or agency relationship between Groupon and you. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other in any way. Because Groupon is not your agent, or the Purchaser’s agent, for any purpose, Groupon will not act as either Purchaser’s or your agent in connection with resolving any disputes between Purchasers and you related to or arising out of any transaction.

21.4 Force Majeure. Whenever a period of time is prescribed for action to be taken by Groupon, Groupon shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays (including an allowance for Business Days) due to strikes, riots, acts of God, war, governmental laws, regulations, or restrictions, or any other causes of any kind whatsoever which are beyond the reasonable control of Groupon.

21.5 Waiver; Severability. Any waiver of a provision of this Agreement must be in writing, expressly identify the provision to be waived, and be signed by an authorized representative of Groupon. The consent or approval by Groupon to or of any act by you requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. Groupon’s failure, whether single or repeated, to exercise a right hereunder shall not be deemed to be a waiver of that right, and Groupon’s delay in exercising a right shall not be deemed a waiver of that or any future right. If any provision of this Agreement should be held to be unenforceable or invalid, the validity and enforceability of the remaining provisions of this Agreement are not affected.

21.6 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.

21.7 Modification. Groupon may amend any of the terms and conditions contained in this Agreement at any time and at its sole discretion. You agree that any changes will be effective upon the posting of notice pursuant to Section 21.1 above, and that the posting of notice pursuant to Section 21.1 above is adequate and reasonable notice of changes to the terms and conditions of this Agreement and that it is your responsibility to review the notice locations and inform yourself of all applicable changes or notices. You should refer regularly to the Groupon Stores Portal to review the current Agreement and to be sure that you can comply with the Agreement and that the items you offer can be offered. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR CONTINUED USE OF THE GROUPON STORES SERVICES AFTER GROUPON PROVIDES NOTICE PURSUANT TO SECTION 21.1 ABOVE OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS AND YOUR AGREEMENT TO BE BOUND BY THE AGREEMENT AS REVISED.

21.8 Interpretation. The headings preceding the text of the sections and subsections 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” shall be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to dollars (including via the symbol “$”) shall refer to the currency United States dollars. References to any Person (including the Parties and any other entities referred to) shall be construed to mean such Person and its successors in interest and permitted assigns, as applicable. References throughout to this “Agreement” include any exhibits or attachments, unless otherwise stated.

21.9 Assignment. You are not authorized to transfer or assign any 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 to which this Agreement relates, or by operation of law, without notice to you.

21.10 Delegation. If you delegate any obligation under this Agreement to a Third Party Merchant, you shall ensure that such Third Party Merchant has reviewed and agreed to uphold each term of this Agreement in full, including confidentiality obligations. You acknowledge and agree that you shall be fully liable for any non-compliance on the part of a Third Party Merchant. Before you disclose Confidential Information to a Third Party Merchant, such Third Party Merchant must sign a confidentiality agreement that requires it to protect the Confidential Information in at least the same manner specified in this Agreement.

21.2 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 AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE GROUPON STORES SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE; THAT THE FEATURE PAGES OR STORE PAGE WILL BE ERROR-FREE; THAT ANY ERRORS, OMISSIONS, OR MISPLACEMENTS IN ANY FEATURE PAGES OR STORE PAGE WILL BE CORRECTED; OR THAT THE PROMOTION OF YOUR PRODUCTS WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU.