Room Reservation Deal Request

Effective date 3/27/2019

This Room Reservation Deal Request (the “DR”) is entered into by and between Groupon Getaways, Inc., a Delaware corporation with its principal office at 35 W Wacker Dr., FL 25, Chicago, IL 60601 (“Groupon”), and the business identified below (the “Company”). This Agreement is effective as of the date it is executed by Company and accepted by Groupon (the “Effective Date”). Groupon and Company may each be referred to individually as a “Party,” or collectively as the “Parties.” Groupon provides marketing, promotional, and room reservation services for transient accommodations (collectively, the “Reservation Services”). Company owns and possesses rooms that are available for short-term rental by transients (the “Rooms”) at the property contemplated by this Agreement (defined below) (the “Property”). Company desires that Groupon provide the Reservation Services for the Rooms described in the Company-provided deal (the “Offer”) as a commissioned agent, located and established in the United States, for Company. Such Offer shall be made available through the Reservation Services provided by Groupon pursuant to the terms and conditions located at https://www.groupon.com/merchant/room-reservation-terms-and-conditions (the “Terms and Conditions”) and the terms and conditions described in this DR (this DR, together with the Terms and Conditions, collectively constitute the “Agreement”). An Offer shall be subject to Groupon’s then current “Terms of Use” posted and available on the Groupon Site, as amended from time to time. The Reservation Services shall be provided exclusively from the United States. Capitalized terms in this DR that are not otherwise defined have the meanings assigned to them in the Terms and Conditions.

COMPANY: «LEGAL ENTITY NAME»
PROPERTY: «ACCOUNT_NAME»
OFFER: «MULTI_DEAL_NAME»
COMMISSION: The “Commission” shall be «MULTI_DEAL_MARGIN_PERCENT» percent of the price charged to a Purchaser for the Offer, exclusive of Taxes.
PROCESSING FEE: Groupon shall deduct a processing fee to cover its transaction processing costs. The “Processing Fee” for this offer shall be «MULTI_DEAL_CC_FEE_NEW»% of the amount paid by a Purchaser for a transient accommodation.
AVERAGE DISCOUNT: The “Average Discount” across the travel window for the Room described in this Offer must be «MULTI_DEAL_AVERAGE_DISCOUNT»%.

FINE PRINT: All generally applicable policies (e.g., cancellation policies that apply to all customers) and contractual arrangements (e.g., liability waivers required for all customers) applicable to the Offer shall constitute the “Fine Print” as set forth below.

«OPPORTUNITY_CONDITIONS»

PAYMENT TERMS: Subject to the Terms and Conditions, Groupon will pay you on the following basis: [Payment terms that appear below would be whatever option is selected in Salesforce]

[Pre-Payment Terms] Groupon shall process payment due Company on the 1st and 16th day of each calendar month in which a Purchaser is scheduled to check into a Room for the 1st through 15th and the 16th through the last day of the month, respectively (each a “Pre-Payment Period”). If the 1st or 16th of the month is not a business day, then Groupon will process payment to Company on the following business day. Any refunds accrued during a Pre-Payment Period will be deducted from the following Pre-Payment Period. Notwithstanding the foregoing, within ten (10) business days after the last scheduled occupancy date in respect of Room reservations made pursuant to this Agreement, Groupon will process the final payment, if any, less any remaining refunds. Company shall pay Groupon, by check or wire, any amount by which the remaining refunds exceed the final payment within five (5) days from receipt of an invoice from Groupon. The payment to Company shall be exclusive of any Commissions (as defined in the Terms and Conditions), Processing Fees and any other amounts Groupon is permitted to deduct.

[Post-Payment Terms]. Groupon shall process payment due Company on the 1st and 16th of each calendar month for Purchasers who check into a Room. Groupon will process payment for all check-ins from the 1st to the 15th of a month on the 16th day of each calendar month and all check-ins from the 16th until the end of the month will be processed for payment on the 1st of the following calendar month (each a “Post-Payment Period”). If the 1st or 16th of the month is not a business day, then Groupon will process payment to Company on the following business day. Any refunds accrued during a Post-Payment Period will be deducted from the following Post-Payment Period. Notwithstanding the foregoing, within ten (10) business days after the last possible check-out date in respect of Room reservations made pursuant to this Agreement, Groupon will process the final payment, if any, less any remaining refunds. Company shall pay Groupon, by check or wire, any amount by which the remaining refunds exceed the final payment within five (5) days from receipt of an invoice from Groupon. The payment to Company shall be exclusive of any Commissions (defined in the Terms and Conditions), Processing Fees and any other amounts Groupon is permitted to deduct.

[Single Use Credit Card Payment Terms] Groupon shall pay Company, by single-use credit card (“Single-Use Credit Card”), for each Purchaser who checks into a Room. The amount Groupon will pay per Purchaser who checks into a Room is the amount received from a Purchaser exclusive of any Commission (defined in the Terms and Conditions), Processing Fees and any other amounts Groupon is permitted to deduct. For each reserved Room, Groupon will provide Company with the applicable SUCC number, the reservation made by the Purchaser, and the amount Groupon will pay Company. Company shall charge the applicable SUCC at the time or after the Purchaser checks-in to the Room. If Company owes a Purchaser a refund, Groupon reserves the right to recover from the Company the amount refunded by Groupon to Purchaser via the applicable SUCC or otherwise. Company agrees it shall keep all SUCC-related information secure. If such information is stolen or is otherwise misappropriated, Groupon shall have no liability to Company. If Company experiences a failure in processing any Single-Use Credit Card, Company must notify Groupon within sixty (60) days of consumption (“Claims Period”). Groupon shall have no obligation to pay Company for any requests for credit card payments not made within the Claims Period.

Company Data On File Requested Change (if necessary)
Bank Name: «ACCOUNT_BANK_NAME»
Account Number: «ACCOUNT_ACCOUNT_NUMBER»
Tax ID Number: «ACCOUNT_TAX_ID»
Routing Number: «ACCOUNT_ROUTING_NUMBER_ENC»

FORM OF PAYMENT: (Select either Direct Deposit,  Payment by Check or Single Use Credit Card.)

ACH Payments (Direct Deposit): Groupon shall remit payment via ACH or, if applicable, International ACH credit transaction entries to the following bank account, in accordance with the Terms and Conditions.

Company Data On File Requested Change (if necessary)
Make Checks Payable to: «ACCOUNT_MAKE_CHECKS_PAYABLE_TO»

Payment by Check: Groupon shall remit payment via check to the following address:

Signature:
Effective Date:

Payment by Single Use Credit Card: Groupon shall remit payment via Single Use Credit Card subject to the terms and conditions of this Agreement.

THE PARTIES AGREE TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE.COMPANY I represent that I am a duly authorized representative of Company and that my act of electronically signing this document shall be a binding commitment of Company under the terms of this Agreement.

Signature:
Effective Date:

ROOM RESERVATION TERMS AND CONDITIONS

Effective Date [DATE]

These Terms and Conditions govern the DR and collectively, with the DR, constitute the Agreement between Company and Groupon.  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 the Terms and Conditions (as may be amended by Groupon from time to time) will be available: (i) at https://www.groupon.com/merchant/room-reservation-terms-and-conditions, (ii) in the Groupon extranet system, and/or (iii) as part of a communication from Groupon. Company agrees that any of these notification methods constitute adequate notice to inform Company of any amendments to the Agreement and Company further agrees to be bound by any such amendments to the Agreement upon such notification. In the event of a conflict between these Terms and Conditions and the terms of the DR, these Terms and Conditions shall govern unless the DR expressly states that it supersedes these Terms and Conditions with respect to a specific point. Capitalized terms not defined herein shall have the definition set forth in the DR.

Article I

Room RESERVATION Services

  • Offers.
  1. Subject to the terms and conditions of this Agreement, Company shall submit to Groupon the Room allotment per night per Property (“Room Allotment”) through the Groupon extranet system (“System”). Company must provide, at a minimum, the following information for the Room Allotment: (i) the percentage discount (“Discount”) that will be applied to the LAR (as defined below) to determine the price charged to Purchasers (as defined below) of a Room and any goods or services made available in the Offer (the “Sell Price”), (ii) the undiscounted, retail rates published on Company’s website (the “Hotel Site Value(s)”), (iii) the then-current lowest available rate(s) as published on Company’s website or on a third party website, including, non-refundable and advanced purchase rates (the “LAR”), and (iv) any Fine Print (as defined in the DR). For the sake of clarity, subsections (i) through (iv) shall be the basis for the Offers that Groupon provides the Reservation Services for under this Agreement. The Discount applicable to any Offer shall be at least equal to the Minimum Discount specified in the Inventory Guideline (defined below). Company shall also maintain the Average Discount (defined in the DR) throughout the promotion of the Offer, unless otherwise agreed to by the Parties. Company shall be liable for the truth and accuracy of any and all information that it provides to Groupon through the System.
  2. Groupon shall review and approve the Room Allotment, along with all the information submitted through the System (including that specified in subsection 1.1(a) above) before Groupon provides any Reservations Services for an Offer over any of the Groupon Channels (as defined below). In the event of a conflict between these Terms and Conditions, the terms and conditions of the DR and/or the System, any terms and conditions specified in the System shall govern. Company shall comply with the inventory guidelines set forth in the System (the “Inventory Guidelines”), which stipulate parameters for the Room Allotment. Company shall not reduce the Room Allotment established in the System. In the event Company oversells Rooms at a Property on any night listed in the System, Company shall (i) accommodate Purchasers at the Property listed in the Offer or (ii) relocate Purchasers to a property of similar quality and in a room with comparable standards as that of the reserved Room, pursuant to the terms of this Agreement. Groupon shall have no obligation to reserve a minimum number of Rooms and shall have no liability for failure to reserve the Rooms. Groupon and Company shall agree on the Discount. Company authorizes Groupon to adjust the Sell Price, on a regular basis, by applying the Discount to the then-current LAR. Company shall honor the Sell Price as determined above. Following Groupon’s review and approval of the Room Allotment and the required and additional information about the Room Allotment, Groupon will develop content to describe Company’s Offer.
  3. c. Groupon shall assign Company a username and password (the “Account Credentials”), which will be sent to the Company’s email address, and Company shall use the Account Credentials to verify its identity when logging into the System. Company shall keep the Account Credentials confidential and agrees the Account Credentials are non-transferable. Company may not share or provide the Account Credentials issued to it to any other physical or legal person. If Company fails to comply with this prohibition, Company shall solely be liable for any acts performed by any physical or legal person who uses the Account Credentials without authorization and shall hold Groupon harmless for any losses, damages or consequences of whatsoever kind deriving directly or indirectly from such acts.
  4. In addition to the Offer(s) specified in the DR, at the time of signing the Agreement, Company may agree to authorize Groupon to provide Reservation Services for additional offers by executing a mutually acceptable addendum to this Agreement. If Company and Groupon execute an addendum or addenda to this Agreement, the terms and conditions of this Agreement, shall apply to each addendum.
  • Room Images. Company shall submit at least three (3) images of the Rooms (the “Images”) within forty-eight hours of the Effective Date of this Agreement. If Company does not timely submit the required Images, Company authorizes Groupon to commission a photographer to create Images suitable for describing the Offer. In the event Groupon commissions such photographer: (a) Groupon hereby grants to Company a royalty-free, non-exclusive, non-transferable, worldwide license, including the right to display, reproduce, copy, distribute, and otherwise use the Images, to promote the Company’s business on Company’s website, micro-site, and/or blog for one (1) year starting from the Effective Date of this Agreement, provided that (i) the Company provides the following attribution “© 2014 Groupon, Inc. All Rights Reserved.” in reasonably close proximity to the Company’s use of the Images, and (ii) the Images are not used in any manner whatsoever to promote Company’s business on, with, or in connection with any Groupon Competitor (as defined below); and (b) upon prior notice to Company, Groupon may charge Company for the expense Groupon incurs in connection with commissioning any photographer. At the end of the one (1) year term, Company shall seek Groupon’s express written permission to continue using the Images. Company understands that pursuant to this license, Groupon, its affiliates, and its third-party promoters may, but are not obligated to, use the Images in and in connection with Groupon’s Reservation Services. In addition, Groupon may use any information or content Company provides, and Company shall be responsible and liable for any third-party claims arising from Groupon’s use of or reliance upon such materials.
  • Information Provided By Company.
  1. In General. In addition to any other information required to be provided to Groupon under this Agreement, Company shall provide Groupon (i) a description of amenities offered by Company to purchasers of the Offer (the “Purchasers”), (ii) an itemization of the amenities offered by Company to Purchasers that are subject to availability, (iii) the information that Purchasers must provide to Company when checking into a Room, and (iv) if applicable, the accurate, undiscounted value of any goods and/or services that Company includes in the Offer in addition to the Room(s).
  2. Channel Manager. If Company uses a third party to supply online travel agencies or travel service providers with information about Company (“Channel Manager”) and uses a Channel Manager to provide Groupon with any information, Company hereby authorizes Groupon to: (i) obtain that information through a Channel Manager in lieu of receiving it directly from Company; and (ii), notwithstanding the confidentiality obligations in this Agreement, disclose information to any Channel Manager about this Agreement, Company, Property, inventory, Offer, or any other information necessary to facilitate Company’s arrangement with the Channel Manager. Company shall remain liable to Groupon for all acts and omissions of Channel Managers, including, the accuracy of all information (e.g., available Rooms, pricing etc.) supplied to Groupon. All Channel Managers shall be considered Third Parties (defined below).
  3. Information Provided By Groupon. Groupon may provide Company with information necessary for Company to furnish a reserved Room to Purchasers. Such information may include, but is not limited to, the Purchasers’ (i) first and last names, (ii) telephone numbers, (iii) dates of birth, and (iv) addresses. Any information provided pursuant to this Section shall be considered Customer Data (defined below).
    • Property Fees. Company shall provide Groupon an itemization of any property charges such as guest fees or resort fees Company intends to collect from Purchasers (the “Property Fees”) and the manner in which Company intends to collect the Property Fees (g., whether any such Property Fees will be collected at the time a Room is reserved on the Groupon Site or is reserved through other distribution channels owned, controlled or operated by Groupon, or by Company at the time of checkout at Company’s Property). If Company fails to disclose or maintain the accuracy of any applicable Property Fees, Company shall waive such Property Fees for Purchasers who were not provided notice of such Property Fees at the time of reservation. If a Purchaser informs Groupon that Company has charged such Property Fees after Company’s failure to disclose such Property Fees, Groupon shall have the right, in its sole discretion, to refund such Purchaser any amounts such Purchaser has paid in connection with the Property Fees. Amounts refunded to a Purchaser by Groupon pursuant to this Section shall be deducted from any amounts due to Company from Groupon or shall be invoiced by Groupon to Company. Company shall pay any invoiced amounts to Groupon within five (5) days from receipt of such invoice.
    • If a Purchaser is not provided a Room at Company’s Property, Company must relocate the Purchaser to a property of similar quality as that of Company’s Property and in a room of comparable standards as that of the reserved Room. In addition, Company shall notify Groupon immediately in writing and provide the name of the relocated Purchaser, the length of the Purchaser’s displacement, and the accommodation type into which the Purchaser has been relocated. If the Room contains amenities that the Purchaser does not receive at the new accommodation, Groupon may deduct the value of such amenities from any payment owed to Company by Groupon. In addition, Groupon shall review the pricing of the new accommodation and may reject the new accommodation or reduce payment to Company if the new accommodation is not of a standard comparable to that of the reserved Room. Groupon shall notify Company in writing of any reductions in payments from Groupon to Company.
    • Reservations Services and Offers. Company authorizes Groupon to provide the Reservation Services for the Offer(s) on Company’s behalf through any platform, including its feature deal-of-the-day, affiliates, business partner network, marketplace, or referral network and be made available to all or part of Groupon’s subscriber base or its affiliates subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. In addition, Groupon may provide the Reservation Services for an Offer through the Groupon Site or other distribution channels owned, controlled or operated by Groupon such as e-mails, mobile applications or other types of electronic offerings,and in some cases Groupon’s affiliates and third party business partners (collectively, including the Groupon Site, the “Groupon Channels”), in Groupon’s sole discretion. Groupon reserves the rights to reject, revise, discontinue or terminate the promotion of the Offer, at any time and for any reason, and to remove all references of the Offer from the Groupon Site, or the Groupon Channels; and redirect or delete any URL used in connection with the Offer. Groupon is not required to provide any of the Reservation Services for the Offer, including in any jurisdiction where doing so would be prohibited or require Groupon to register or obtain a license to act as a travel agent. If Groupon decides to provide the Reservation Services for the Offer, Company acknowledges and agrees that the length of such promotion will be at least twenty one (21) days in duration, subject to Groupon’s sole discretion.
    • Sole Provider Of Rooms And Services. Company shall be the sole provider of any Rooms, goods or services advertised in the Offer. Groupon is not a provider of Rooms, goods or services and is not advising on the permissiveness or form of advertising for any such Rooms, goods or services. Groupon does not own, possess or have a license to use any of Company’s Rooms and cannot grant the right to use a Room to a Purchaser. Company shall be responsible and liable for (a) furnishing its Rooms offered through Groupon for reservation on the Groupon Site, (b) supplying all goods or services necessary to the redemption and fulfillment of the Offer by a Purchaser, and (c) complying with the terms of the Offer, including the terms as advertised and stipulated in the Offer’s Fine Print and the Terms of Use on the Groupon Site. Company represents and warrants (i) it has not inflated or increased the value of the Rooms, goods or services underlying the Offer, and (ii) it will not manipulate the pricing of a Room, good or service in any way that is unfair, deceptive, misleading or outside the ordinary course of business. Company agrees that it will comply with the terms and conditions of the Offer without modification and without imposing any restrictions or additional charges or penalties that are not expressly stated in the Offer.
    • Third Parties. Company may subcontract or delegate portions of its performance hereunder to third parties (“Third Parties”). If Company subcontracts or delegates its duties to Third Parties, Company shall remain solely responsible and liable for all its obligations under this Agreement, including financial obligations, and shall be responsible for all acts and omissions of the Third Parties. Company shall require all Third Parties to comply with all applicable restrictions and obligations of Company under this Agreement, and Company shall be solely responsible for its financial and contractual relationship with all Third Parties.
    • License Of Company Content. Unless otherwise expressly specified in this Agreement, Company hereby grants Groupon a non-exclusive, worldwide, perpetual, irrevocable, transferable and sub-licensable license (the “License”) to use, edit, copy, distribute, display, publish and perform (and authorize the use, editing, copying, distribution, display, publication and performance of) any of Company’s Images, business name, address, trademarks, photographs, graphics, artwork, videos, sound clips, text and other content or materials that Company (a) provides to Groupon, (b) recommends or directs Groupon to utilize on Company’s behalf, or (c) makes freely available to the public on Company’s website or in any publications or other communications made by Company (the “Content”), in any and all media or formats now or hereafter known, for use by Groupon in connection with (i) Groupon’s fulfillment of its rights and obligations under this Agreement, including the promotion and reservation of the Rooms, and (ii) potential incorporation into any news, public relations, marketing, promotional, advertising or other materials relating to Groupon and its products and services or business relationship with Company. Any restrictions applicable to Groupon’s use of the Content shall be set forth in this Agreement; provided that any such restrictions shall in no way grant Company any approval rights over Groupon’s description, promotion or reservation of the Rooms or otherwise limit Groupon’s rights under this Agreement. All goodwill and improved reputation in respect of and associated with the Content shall inure to Company’s sole benefit.
    • Competitors. During the period commencing thirty (30) days prior to the Offer(s) being made available for purchase on the Groupon Site and concluding thirty (30) days after the last day the Offer(s) are available for purchase on the Groupon Site, Company shall not authorize any other person, including any other company or business that is a competitor of Groupon (“Groupon Competitor”) to make available for reservation or market and promote the same or substantially similar Rooms and goods and services (if applicable) made available as part of an Offer at the same rate or a lower rate than the Sell Price. If Company violates this Section, in addition to any other remedies Groupon may have available, Groupon shall have the right to adjust the Sell Price as set forth in this Agreement. Groupon Competitors include any online travel agency or provider of online deals or discounts, for example, Expedia, Hotels.com, Booking.com, Orbitz, Priceline, Travelocity, TripAdvisor, Kayak, Jetsetter, Google, Amazon, Gilt Groupe, Yelp, and Facebook.

Section 1.11          Discrimination. Company shall not discriminate against a Purchaser or fail to provide a Room or amenities to a Purchaser on the basis of a Purchaser’s race, ancestry, national origin, color, ethnic origin, citizenship, religion, political convictions, sex, sexual orientation, gender identity, gender expression, pregnancy, age (except as provided by law), marital status, family status, disability or other basis prohibited by applicable Laws (as defined below).

Section 1.12          Timeshare Presentations. Company shall not require any Purchaser to attend any presentation related to a timeshare unit or timeshare property regime or require a Purchaser to pay a fee, penalty or similar charge for failure to attend any presentation related to a timeshare unit or timeshare property regime.

PAYMENTs, Fees & Commissions

  • Groupon shall be entitled to a commission (the “Commission”) for its Reservation Services. The Commission shall be a percentage of the Sell Price, exclusive of Taxes (defined below), as set forth in the DR. Groupon shall have a right to a Commission for a purchased Offer after a Purchaser can no longer cancel or modify a Room reservation under the Cancellation Policy (defined below). Groupon shall deduct and retain its Commission from the amounts paid by Purchasers.
  • Credit Check. Groupon retains the right to seek reasonable assurances of Company’s financial stability prior to paying Company any amount due, including through bank reference notes and credit reports. If Groupon has good faith concerns regarding Company’s solvency, Groupon reserves the right to seek additional reasonable assurances or withhold any remaining portion of its payments until Company has allowed substantially all of the Rooms reserved to be occupied by Purchasers.
  • ACH (Direct Deposit). If direct deposit payments are requested in the DR, Company authorizes Groupon to (a) initiate ACH credit transaction entries or, if applicable, International ACH credit transaction entries to Company’s depository account designated in the DR at the depository financial institution named in the DR (the “Company Bank Account”), and (b) initiate, only if required, debit entry adjustments to Groupon’s depository account at the named Company Bank Account in the event a corresponding credit entry by Groupon was made in error. Groupon’s obligations under this Section are subject to applicable provisions of U.S. law.
  • Refunds and Cancellations. Groupon may issue refunds to Purchasers consistent with the Cancellation Policy (as defined herein), and deduct such refunds from the payments otherwise due to Company. For purposes of this Agreement, the “Cancellation Policy” means the (a) Groupon cancellation policy set forth on the Groupon Site, and/or (b) determination by Groupon, in its sole discretion, to issue refunds to Purchasers due to any Force Majeure Event (as defined herein). Cancellations or modifications requested by Purchasers inconsistent with the Cancellation Policy shall be directed to Company. Company, at its sole discretion, shall allow any requested cancellation and modifications inconsistent with the Cancellation Policy at its own expense; provided, however, that such Company policy on cancellations and modifications shall be applied consistently to all Purchasers and at Company’s expense without any reduction to the Commission.
  • Refunds and Non-Performance. Company agrees that in the event it is either unable or unwilling to perform its obligations under this Agreement, Company shall reimburse Purchasers and Groupon any and all payments, including the amount of the Commission, Processing Fees, and any Property Fees, for any and all Rooms such Purchasers are entitled to occupy. In addition to the foregoing, Company agrees that it will not be entitled to any payments hereunder, and Company shall reimburse Groupon any and all payments previously received from Groupon, in connection with any amounts Groupon remits to Purchasers who request refunds. In the event Company is subject to a bankruptcy proceeding or other liquidation, any payments Company is holding for Rooms that were not occupied shall be immediately returned directly to each Purchaser (if such Purchaser’s identity is ascertainable), or to Groupon to enable it to return such amounts to Purchasers, and no third party shall have any right or claim to such funds.

TERM AND TERMINATION

  • Term And Termination. The Agreement will commence on the Effective Date and shall remain in effect until terminated by the Parties. Subject to other provisions of this Article III, in the event that Groupon materially breaches this Agreement and Groupon fails to cure such breach within thirty (30) days written notice to Groupon adequately describing such breach in detail, then Company may terminate this Agreement by providing written notice of termination to Groupon. Groupon may terminate this Agreement (a) with or without cause, upon thirty (30) days written notice to Company, or (b) immediately upon written notice to Company in the event of any material breach of this Agreement by Company.
  • Obligations Upon Termination. The expiration or termination of this Agreement shall not affect (a) the rights of any Purchaser, (b) Company’s obligation to provide the Room reserved by a Purchaser and the goods or services underlying the Offer, (c) Groupon’s right to any Commission, Processing Fee or other payment due under this Agreement, or (d) Company’s right to any payment due under this Agreement with respect to any reservation made prior to such termination.
  • Any Section of this Agreement that is intended or required to survive its termination or expiration in order to achieve its full effect shall continue indefinitely, including provisions affecting claims for Commissions due to Groupon.

REPRESENTATIONS AND WARRANTIES

  • By Both Parties. Each Party represents and warrants to the other Party that: (a) it has the power and authority to execute and deliver this Agreement and perform its obligations hereunder; (b) it is an entity duly organized, validly existing and in good standing and has all necessary licenses and permits to conduct its business under the Laws of its jurisdiction of incorporation or formation and in each jurisdiction in which it operates; (c) this Agreement is legal, valid and enforceable against it in accordance with its terms; and (d) it will comply with all Laws applicable to its obligations under this Agreement.
  • Company represents and warrants that it is registered, where necessary, for the collection of sales, use, hotel occupancy, transient accommodations and other similar taxes (collectively, the “Taxes”) in all states, provinces, territories and localities in which Rooms will be made available in connection with this Agreement and that it will collect (subject to Section 5.1) and timely remit any and all applicable Taxes.
  • Intellectual Property. Company represents and warrants that the Content and any information or materials provided or otherwise made available by Company to Groupon do not and will not infringe, misappropriate or otherwise violate any intellectual property right or right of privacy or publicity of any third party.
  • Right To Grant Short-Term Rental Of Rooms. Company represents and warrants that it solely possesses any and all rights necessary to grant a license to Purchasers to use the Rooms. Company represents and warrants that it and any Third Parties have all licenses, permissions and otherwise comply with applicable Laws governing hotel and tourist accommodation establishments, including all applicable fire and health and safety regulations; and that Company’s provision of the Rooms and any amenities will comply with all applicable consumer protection Laws, including such Laws relating to mandatory implied warranties and unfair trade practices. In addition, Company represents and warrants that it, its employees, representatives, agents and any Third Parties have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Offer to provide the goods or services described in this Agreement.
  • No Further Representations. Except as expressly set forth in this Agreement, neither Party makes any representations or warranties, express or implied, including any implied warranty of merchantability, fitness for a particular purposes or non-infringement. Groupon does not warrant or guarantee that the Offer or process of reserving a Room will be error-free or that any errors, omissions or misplacements will be corrected, or that the Offer will result in revenue or profit for either Company or Groupon. Groupon makes no representations or warranties, express or implied, regarding the Groupon Site (including with respect to its uninterrupted or error-free operation) or any promotion, distribution or reservation method used by Groupon. The Groupon Site and other promotion, distribution or reservation channels used by Groupon and all related information and materials are provided “as is,” without any warranty of any kind, on an “as is available” basis.

Taxes

  • Errors In Tax Rates. Company shall provide Groupon with the correct Tax rates to apply to the Sell Price. Company shall be solely liable for any uncollected Taxes resulting from Company’s furnishing of an incorrect Tax rate to Groupon.
  • Agent For Collection From Purchasers. Groupon is entitled to collect the Sell Price from Purchasers, and Company shall not collect from any Purchaser any amount already collected from such Purchaser by Groupon. Except with respect to any fee that Groupon charges a Purchaser, any amounts collected from a Purchaser, be it the Sell Price or otherwise, shall be collected by Groupon solely in its capacity as an agent of Company as described below.
  • Company Responsible For Tax Remittance. Company shall timely remit any and all Taxes applicable to the Sell Price to the appropriate tax authorities and shall be solely liable for any failure to timely remit such Taxes. Company shall provide Groupon with appropriate documentation of remitting Taxes upon Groupon’s request.

Section 5.4 Sales/Excise Tax. “Sales/Excise Tax” means, the tax rate applied by the applicable government authority to the total amount retained by Groupon, including the Commission and the Processing Fee. The applicable Sales/Excise Tax will be withheld from payments due to Company hereunder based on Company’s billing address. If Company’s billing address is located in Hawaii, the applicable Sales/Excise Tax is a general excise tax (GET), which will be applied according to applicable tax laws.  Company acknowledges that (a) the Sales/Excise Tax rates may be revised by the applicable government authority, and (b) other government authorities may impose similar taxes in the future, such revised or future Sales/Excise Tax rates will be applied based on Company’s primary billing address.

INDEMNIFICATION

  • By Company. Company, at its sole cost and expense, shall defend, indemnify and hold harmless (“indemnify” or “indemnification”) Groupon, its affiliated and related entities, and any of its or their respective officers, directors, stockholders, employees, agents and representatives, from and against any third party claims, lawsuits, actions, proceedings, allegations or investigations (collectively, the “Claims”) for any fees, costs, sanctions, penalties, damages, liabilities, losses or expenses (including attorney’s fees, interest and costs) (collectively, the “Losses”) arising out of or relating to any of the following: (a) Company’s (i) fraud, willful misconduct or gross negligence or (ii) breach or alleged breach of this Agreement; (b) Taxes (including any penalties, interest or other additions to tax) arising from the sale of the Offer or reservation of a Room; (c) unclaimed or abandoned property arising from or related to any Offer, including any Claims for penalties and interest; (d) the Rooms, goods or services provided by Company, including any claims for false advertising, injuries, illnesses, damages or death; (e) the materials Company provides or otherwise recommends or directs Groupon to use in connection with the Offer; (f) Company’s provision of incomplete or inaccurate information related to the Offer; (g) any infringement, misappropriation or other violation of any patent, trademark, copyright, publicity, privacy, trade secret or other right of any third party by Company, including in connection with the Content or Groupon’s use thereof; (h) any violations by Company or Third Party of applicable Laws governing hotel and tourist accommodation establishments; and (i) any violation of consumer protection Laws by you or any Third Party in connection with the provision of the Rooms.
  • By Groupon. Groupon, at its sole cost and expense, shall indemnify Company and its officers, directors, employees, agents and representatives, from and against any and all Claims for Losses brought against Company arising out of or in connection with (a) Groupon’s material breach of this Agreement; or (b) any infringement, misappropriation or other violation of any trademark or copyright of any third party by Groupon, except in connection with Groupon’s use of the Content or any other material provided by Company.
  • Indemnification Process. The Party seeking indemnification under this Article VI shall promptly notify the other Party in writing of any Claim for which it seeks indemnification; provided that such indemnified Party’s failure to timely provide such notice shall not relieve the indemnifying Party of its indemnification obligations unless the indemnifying Party can demonstrate actual prejudice as a result of such failure. In the event Groupon is the indemnifying Party, Groupon shall have the right, upon written notice to Company, to elect to assume control of the defense and settlement of any Claim, and Company shall have the right to participate and be represented in the defense of such Claim by Company’s own counsel, at Company’s own Company shall not settle any Claim for which it is indemnified hereunder without Groupon’s prior written consent, which consent shall not be unreasonably withheld or delayed.

COMPLIANCE WITH LAW and authorizations

  • Compliance With Laws. Company shall ensure that its activities and business operations comply with any and all local, state, provincial, territorial and federal laws (including executive orders), rules, regulations and orders, including the United States Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and all other laws that govern false, unfair and deceptive practices, the short-term rental of transient accommodations, or the health and safety of transient guests (collectively, “Laws”).

CONFIDENTIALITY

Each Party agrees to keep confidential (a) the terms of this Agreement, (b) any information designated by the other Party as “confidential,” and (c) any information that the recipient should reasonably expect to be confidential under the circumstances (collectively, the “Confidential Information”). Each Party shall take reasonable precautions to protect all Confidential Information and will only disclose Confidential Information to its employees and agents on a need-to-know basis. Notwithstanding the foregoing, Confidential Information shall not include those terms and conditions of the Offers intended to be disclosed as part of the Reservation Services provided under this Agreement.

INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA

  • Groupon Intellectual P Company acknowledges that Groupon owns all right, title and interest, including all intellectual property rights, in and to (a) the Groupon Site, Groupon’s trade name, logos, trademarks and service marks, and (b) any content, data, software, technology, tools or business methods used by Groupon to develop, promote, market, sell, reserve, book or distribute Rooms and otherwise perform under this Agreement (collectively, the “Groupon IP”). All content, excluding any of Company’s Content contained therein, is deemed Groupon IP. For so long as Company’s rooms are listed on Groupon’s website, Company may use Groupon’s name, trademarks and logos to publicize the fact that it has been listed on the Groupon Site to Company’s customers and potential customers. Except as expressly authorized by Groupon in this Agreement, Company shall not use or display the Groupon IP, including in any manner that states or implies that Groupon has endorsed or approved Company’s Rooms or services. Groupon reserves the right to revoke Company’s right to use the Groupon IP in any way, at any time, and for any reason. Company’s use of any Groupon IP must comply with any guidelines or terms provided from time to time by Groupon to Company. All goodwill and improved reputation in respect of and associated with the Groupon IP shall inure to the sole benefit of Groupon. Except as expressly set forth in this Section, Company has no right, license, title or interest in or to any Groupon IP, and shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the Groupon IP without the express written consent of Groupon. Company shall not translate, reverse engineer, decompile or disassemble the Groupon IP. Any rights not otherwise granted herein are specifically reserved by Groupon. Groupon shall have the right to revoke the rights sets forth in this Section upon written notice to Company.
  • Customer Data. As between Groupon, Company and any Third Parties, Company acknowledges that Groupon owns all data collected by or on behalf of Groupon or Company pursuant to this Agreement, including all information and data of Purchasers (the “Customer Data”). Subject to applicable Laws and in accordance with Groupon’s policies relating to administrative, technical and security controls and procedures, Groupon shall provide Company with access to Customer Data solely to the extent necessary for Company to furnish Rooms or verify the validity of Room reservations. Except to the extent required by applicable Laws or otherwise authorized in writing by Groupon, Company shall not use Customer Data for any other purpose. Company shall protect the security of Customer Data and comply with all Laws (and Groupon’s policies and procedures) relating to the processing of such Customer Data. If Company becomes aware of or suspects any unauthorized access to or use of Customer Data or any Confidential Information of Groupon, Company shall immediately notify Groupon and shall cooperate with Groupon in the investigation of such breach and the mitigation of any damages. Company shall bear all resulting costs and expenses incurred by Groupon to comply with applicable Laws (including any data breach Laws). Upon termination or expiration of this Agreement, Company shall, as directed by Groupon, destroy or return to Groupon all the Customer Data in Company’s possession.

LIMITATIONS OF LIABILITY; INSURANCE

  • Limitation Of Groupon Liability. Groupon’s sole and complete liability to Company in connection with any Claim shall be limited to the amount of any Commission paid to Groupon prior to the date the Claim arose. In no event shall Groupon be liable to Company, any Third Party or any other third party for any Claims relating to the use of Company’s Rooms, goods or services, including Claims related to false advertising, injuries, illness, damages or death. Any Claim by Company or any Third Party arising out of or relating to any Offer must be made within one (1) year of the date on which a reservation for the Room was made through Groupon. All Claims not so made shall be deemed waived by Company and any Third Party.
  • Limitation Of Damages. Except for indemnification obligations arising under this Agreement, or either Party’s (or with respect to Company, any third party’s) (a) violation of Articles V, VII, VIII, or IX, or (b) fraud, willful misconduct or gross negligence, in no event shall either Party be liable or obligated to the other Party or any third party in any manner for any special, incidental, exemplary, consequential, punitive, or indirect damages of any kind, regardless of the form of action, whether in contract, tort, negligence, strict product liability or otherwise, even if informed of the possibility of any such damages in advance.
  • Company represents and warrants that it has, and shall maintain at Company’s expense and at all times during the term of this Agreement, all types of liability insurance policies, with coverage in amounts that are customary for merchants or service providers in Company’s region, consistent with best industry practices and sufficient to fully comply with applicable Laws and fulfill Company’s obligations under this Agreement. Upon Groupon’s request, Company shall provide proof of its maintenance of such policies and provide assurances that Groupon will be covered by Company’s insurance policies in the event of a Claim arising under or in relation to, this Agreement or any Offer.

DISPUTE RESOLUTION

All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 11 Dispute Resolution.

  1. Binding Arbitration. EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN COMPANY 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 14 TO ARBITRATE, COMPANY 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 14). The provisions of this Section 14 shall constitute Company’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 http://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. All Disputes arising in connection with or relating to the interpretation or application of these Terms and Conditions, including as to formation, enforceability, revocability, or validity, and any other questions of arbitrability, shall be delegated to and decided by the arbitrator.
  2. To begin an arbitration proceeding, Company or Groupon must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Company 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 the Company’s 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 Company is the prevailing party in such arbitration. Groupon will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Company Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Company requests 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 we agree that the matter should proceed in the county of Company’s principal place of business.
  3. Class Action Waiver. WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE 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.
  4. Choice of Law/No Jury Trial. If for any reason a Dispute proceeds in court: (i) Company and Groupon agree that any such Dispute may only be instituted in a state or federal court in Cook County, Illinois; (ii) Company and Groupon irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Company 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) COMPANY AND GROUPON AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY
  5. Injunctive Relief/Attorneys’ Fees. 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. In the event Groupon is the prevailing party in any Dispute, subject to any exceptions in this Section 11, Company shall pay to Groupon all reasonable attorneys’ fees and costs incurred by Groupon in connection with any Dispute.

MISCELLANEOUS

  • Any notice required or permitted by this Agreement shall be provided in writing, and shall be deemed delivered when: (a) sent by electronic mail to the applicable Party, or (b) deposited in (i) the United States or Canada mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in the DR.
  • Electronic Communications. Company consents to receive communications from Groupon in an electronic form and agrees that all terms and conditions, agreements, notices, disclosures and other communications that Groupon provides electronically satisfy any requirement that such communications would satisfy if they were in writing.
  • Force Majeure. Neither Party shall be liable for any delays in performance or failure to perform its obligations under this Agreement due to an act of God, terrorism, natural disaster, earthquake, fire, riot, flood or other similar event, including a change in applicable Laws (individually and collectively, a “Force Majeure Event”),  to the extent the Force Majeure Event is beyond the reasonable control of such Party, and only for the duration of the Force Majeure Event.  The Party impeded by the Force Majeure Event shall provide written notice of the  Force Majeure Event to the other Party as soon as commercially reasonable.
  • Relationship Of The Parties. For the limited purposes of promoting and reserving the Offer and collecting payments from Purchasers, Groupon is an agent of Company. Nothing in this Agreement shall be deemed or construed by the Parties, nor by any third party, as creating a joint venture, partnership, franchise or agency relationship between the Parties for any other purpose.
  • Entire Agreement. This Agreement, including any addenda, amendment, terms and conditions or documents incorporated by reference herein, and any attachments hereto , constitutes the entire understanding between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No part of this Agreement may be amended or modified except by mutual written agreement of the Parties.
  • One or more waivers of any covenant, term or condition of this Agreement by either Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
  • Company may not assign or transfer any of 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 or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Company.
  • Successors And Assigns; Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. There are no third party beneficiaries to this Agreement.
  • Any reference in this Agreement to gender shall include all genders.
  • 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” or “includes” shall be interpreted to mean “including, but not limited to,” or “includes, but is not limited to,” unless otherwise indicated. References throughout to this “Agreement” include any exhibits and attachments, unless otherwise stated.
  • The Parties declare that they have specifically requested, and do hereby confirm their request, that the present Agreement be drafted and executed in the English language. Les parties aux présentes déclarent qu’elles ont demandé spécifiquement que le présent acte soit rédigé et signé en anglais et par les présentes confirment leur dite demande.

State of Florida Seller of Travel Registration. GROUPON GETAWAYS, INC. is registered with the State of Florida as a Seller of Travel. Registration No. ST39432.

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