General Terms & Conditions of Groupon Co-operation Agreements dated 7th August 2012

 

                                               

  1. SALE OF VOUCHERS AND PROMOTION

1.1   Groupon shall use its reasonable endeavours to create Vouchers in accordance with Voucher details which are provided by Partner and acceptable to Groupon.

1.2   Groupon shall use its reasonable endeavours to sell Vouchers on Groupon’s own behalf to Purchasers through the Groupon website. This is done by Groupon promoting a particular Voucher by displaying it on the Groupon website on relevant pages (e.g. relevant to a particular town/city) for purchase by Purchasers (called “Promotion”). Groupon must do this for: (i) at least 1 Day within 90 Days of the Start Date (called the “Initial Display”); and (ii) a further period of at least 1 Day per each consecutive Month, provided Partner requests each such further display by notifying Groupon in writing at least 14 days prior to any such block period (called the “Subsequent Display”).

1.3   Vouchers are intended to be redeemed by Purchasers in exchange for Voucher Services provided by Partner. Voucher Services must be of greater value than the payment collected by Groupon for that Voucher (which is the payment in Clause 2.1).

1.4   Subject always to Clause 5.1, Partner acknowledges that Promotion may (and probably shall) be one of several simultaneous live-shopping-offers (i.e. other promotions) run concurrently on the Groupon website by Groupon with its other partners.

1.5   Clauses 1.1 and 1.2 only apply as long as Partner complies with the terms of this Agreement and they are always subject to Clauses 1.4, 2, 3, 4 and 5.

  1. DELIVERY OF VOUCHER SERVICES

2.1   Partner and Groupon understand and agree that: (i) upon purchase of a Voucher via the Groupon website, Purchaser will have the right to demand and receive the Voucher Services from Partner; and (ii) Partner (as opposed to Groupon) shall be solely responsible to provide the Voucher Services to Purchasers.

2.2   Partner warrants and undertakes to Groupon that Voucher Services shall be available: (i) at any time during the term of this Agreement; and (ii) in any event until the expiry date stated on a Voucher.

2.3   In the event that it is agreed between Groupon and Partner that redemption of Voucher Services will be made at Groupon’s office, it is hereby understood that Groupon shall be merely a  

       redemption site or a drop-off point and shall not be deemed as a reseller of Partner’s goods or services.  The Partner shall be responsible for issuing or providing receipts for Voucher

       Services redeemed at Groupon’s office in compliance with applicable tax laws. 

  1. CHANGING DETAILS OF VOUCHERS

3.1   Not more than once each Month, Partner may change the details of the Voucher Services applicable to a Voucher (called a “Change”), provided that: (i) Partner notifies Groupon in writing of any such Change (called a “Change Notice”) and acknowledged in writing by Groupon; (ii) any such Change comes into effect at least 7 days prior to a Subsequent Display; (iii) the Discount is not reduced in either percentage or numerical terms; and (iv) Partner ensures that Voucher Services are services that will remain attractive to Purchasers and are not materially different to those set out on Page 1 of this Agreement. (This Clause 3.1 is subject to Clause 3.2.)

3.2   If a valid Change Notice is received, Groupon may notify Partner in writing, within 7 days of receipt of the Change Notice, that Groupon will not implement the Change (called a “Reject Notice”). If Groupon serves a Reject Notice, then Partner may, within 30 days of receipt of the Reject Notice, notify Groupon in writing that it wishes to terminate this Agreement (called a “Cancel Notice”). The Cancel Notice will take effect automatically at the end of 30 days after receipt of the Cancel Notice by Groupon, unless Groupon notifies Partner within that 30-day period that it will accept the Change (in which event the Cancel Notice shall be deemed void and termination shall not occur). Furthermore, Partner may withdraw a Cancel Notice at any time by a 2-day prior notice in writing to Groupon before the Cancel Notice takes effect. If no Cancel Notice is served, or a Cancel Notice is withdrawn, then this Agreement shall continue on its terms, without the Change being implemented.

3.3   For Vouchers sold prior to an applicable Change, Partner shall continue to honour Voucher Services without such particular Change. . Partner may not change the details relevant to a Voucher except as set out in Clause 3.1. In any event, for so long as no change is made to the details relevant to a Voucher, Groupon may run (and continue to run) the Promotion on multiple occasions (as Groupon sees fit) according to the terms of the details relevant to a Voucher together with any change (if any) Groupon may previously have accepted.

  1. PAYMENTS

4.1   Groupon shall collect and retain the Groupon Voucher Price as payment for a Voucher sold to a Purchaser.

4.2   For any Voucher that is validly redeemed by a Purchaser with Partner, Groupon shall pay to Partner the Groupon Voucher Price less the Success Fee and less the Partner’s proportionate share of the credit card fee of 4.5% and also less any amount in respect of value added tax (“VAT”) chargeable by Groupon in respect of the Success Fee (called “Groupon’s VAT”). For the avoidance of doubt, Groupon shall retain the Success Fee plus Groupon’s VAT. That payment shall be made within 7of Groupon’s working days of Groupon receiving from Partner suitable and valid evidence (the nature of which may be stipulated by Groupon from time to time) evidencing the valid redemption of that Voucher - which evidence Partner must send to Groupon by post, fax or email and which evidence must be received by Groupon within 28 days of the Voucher having been validly redeemed by the Purchaser of that Voucher, with the Partner. If that evidence is not received by Groupon within that time, then Partner shall lose its right to receive any monies from Groupon in respect of that Voucher (and Groupon may retain any monies that would have been so payable).

4.3   Save in respect of Groupon’s VAT, the parties agree and acknowledge that the payment or collection of any amount in respect of VAT (or any fine, penalty, interest or surcharge imposed thereon) arising in connection with supplies made pursuant to this Agreement (called “Partner’s VAT”), the issue of any VAT invoice in respect of Partner’s VAT and the payment of any amount in respect of Partner’s VAT to the relevant Bureau of Internal Revenue a country (“BIR”) shall be the responsibility of Partner, as opposed to Groupon. If a relevant VAT law or BIR practice or regulation changes such that Groupon becomes liable to make any payment to BIR for VAT (other than Groupon’s VAT), Partner agrees that Groupon may unilaterally vary the financial provisions of this Agreement to produce the result which would have been achieved for Groupon, had that change not occurred.

4.4   Groupon may set off against any amounts payable to Partner in respect of this Agreement against any payment of any amount owed by Partner to Groupon (or to BIR, if BIR does, or is likely, in Groupon’s reasonable opinion, to claim any VAT from Groupon); and any payment made by Groupon shall be without prejudice to any claims or rights which Groupon may have against Partner.

4.5   All monetary transactions made by customers on groupon.ph are handled by Groupon International GmbH. For inquiries please contact eu-payments@groupon.ch

4.6   No refunds/credits can be executed past 30 days after expiration.

  1. MUTUAL EXCLUSIVITY

5.1   During the term of the Agreement, Partner shall have exclusivity in respect of the Voucher, which means that during the Initial Display and during any Subsequent Display, Groupon shall refrain from displaying on the Groupon website a promotional offering which is in respect of the same town or city in respect of which the Voucher is provided and which is also in respect of the same narrow category of goods or services in respect of which the Voucher is provided (the ultimate determination of which shall be at the sole reasonable discretion of Groupon).

5.2   During the term of the Agreement, Partner undertakes not to work together, either directly or indirectly, with any other provider of: (i) voucher-based or authorisation certificate-based online marketing and/or sale services; or (ii) services relating to offline sale of vouchers and/or authorisation certificates issued to commercial resellers for the purpose of online marketing or sale.

5.3   During the term of the Agreement, the Partner shall not, directly or indirectly, offer the services and/or goods being offered in the Voucher through other websites or online marketing sites.  The prohibition contained in this Section is deemed to include services and/or goods which while is not exactly the same as that in the Voucher is, nonetheless, similar thereto in some respect.

5.4   Violation of the Mutual Exclusivity clause shall render the Partner liable to Groupon in the amount of One Hundred Thousand Pesos (P100,000.00) as liquidated damages, in addition to such other damages that Groupon may sustain.

  1. WARRANTY/INDEMNITY

6.1   Partner warrants that: (i) it is a commercial (as opposed to a consumer) entity; (ii) it is duly registered/accredited by, and has acquired the relevant permits from, appropriate Philippine government agencies in relation to its business; and (iii) if any change affecting Partner (or its operations) could have an effect on the operation of this Agreement, Partner shall inform Groupon in writing of that change immediately.

6.2   Partner warrants that: (i) it is a commercial (as opposed to a consumer) entity; and (ii) if any change affecting Partner (or its operations) could have an effect on the operation of this Agreement, Partner shall inform Groupon in writing of that change immediately.

6.3   Groupon warrants that it will undertake its obligations with reasonable skill and care.

6.4   Partner hereby indemnifies and hold harmless Groupon (and its directors, officers, agents, representatives and employees) from and against any and all claims, suits, liabilities, judgements, costs, losses and damages arising out of or in connection with any claim or suit or demand: (i) by a Purchaser (or any party on whose behalf a Purchaser has been acting); (ii) in respect of, arising out of, or in connection with, Voucher Services (or any other goods or services actually or purportedly offered in respect of or connected to a Voucher); (iii) in respect of, arising out of, or in connection with a Voucher; (iv) by BIR, in respect of or connected to the collection or payment of VAT in any way connected to this Agreement or any matter or goods or services under or arising from it (e.g. Voucher Services); (v) in connection with Clause 4.2; and/or (vi) any claim by third parties arising from or in relation to the Voucher Services.

6.5   Partner expressly warrants to Groupon that the Products and Voucher Services it offers to the public and sells to the Purchasers are authentic and genuine and that it has the right to offer or sell said Products and Voucher Services.  In the event that this warranty is breached or violated, Groupon, in addition to the provisions of Section 6.3, may hold the Partner liable for damages in an amount not less than One Hundred Thousand Pesos (P100,000.00) and reimbursement of any legal fees that Groupon may incur in relation to this breach or violation of warranty.

  1. Term and Termination

7.1   This Agreement shall start on the Start Date and unless terminated earlier under Clauses 3.2, 7.2 or 7.3: (i) shall continue for an initial term of 24 months; and (ii) thereafter shall continue for successive terms of 12 months each; unless either party has given 3 month’s written notice to the other party to terminate this Agreement, such notice to be effective at the end of the such initial term or at the end of an aforementioned successive term (as applicable).

7.2   This Agreement shall terminate in any event on the fifth anniversary of the Start Date.

7.3   Either party may terminate this Agreement with immediate effect by notice in writing to the other party if the other party commits a material breach, which, in the case of a material breach capable of remedy, is not remedied within 14 days after written notice is given to the breaching party, specifying the default.

7.4   Termination of this Agreement: (i) in accordance with its terms, shall not affect the accrued rights or liabilities of the parties at the date of termination; and (ii) shall have no effect on: (a) the validity of Vouchers already issued to Purchasers; or (b) Partner’s obligations to provide Voucher Services in respect of such Vouchers.

7.5   Clauses 2, 3.3, 4, 6.4, 7.4, 7.5 and 8 (together with those provisions that either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination) shall survive termination of the Agreement.

7.6   In the event of a pre-termination of this agreement prior to the fulfilment of the partners obligations expressly stipulated in this agreement, partner agrees to indemnify Groupon Philippines the amount of not less than Ten Thousand Philippine Pesos (P10,000) as payment for services rendered in promoting this co-operation.

  1. LEGALS

8.1   Entire Agreement: This Agreement contains all the terms agreed between the parties regarding its subject matter, supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.  No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement.  Neither party shall have any remedy in respect of any untrue statement made by the other party upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement. This Agreement is to the exclusion of all other terms and conditions submitted, proposed or stipulated by Partner (including any terms or conditions which Partner purports to apply under any purchase order, confirmation of order, specification or other document) and no terms or conditions endorsed upon, delivered with or contained in Partner’s purchase order, confirmation of order, specification or other document will form part of this Agreement.

8.2   (i) Preservation of rights: No waiver by Groupon of any violation or default in performance of the provisions of this Agreement shall be deemed a waiver of such provisions or the right of Groupon to thereafter enforce such provisions or any other provisions of this Agreement. (ii) Severing anything invalid in this Agreement: The invalidity or unenforceability of any term of or right arising pursuant to this Agreement shall not adversely affect the validity or enforceability of the remaining terms and rights. (iii) No third party rights: No term of this Agreement shall be enforceable by a third party. (iv) No assigning this Agreement: Partner may not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any right, benefit or interest under it nor transfer, novate or sub-contract any of Partner’s obligations under it.

8.3   Liability: Groupon does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Groupon shall not be under any Liability for: (a) loss of actual or anticipated profits; (b) loss of goodwill; (c) loss of business; (d) loss of revenue or of the use of money; (e) loss of contracts; (f) loss of anticipated savings; (g) loss of data and/or undertaking the restoration of data; or (h) any special, indirect or consequential loss; and such liability is excluded whether it is foreseeable, known, foreseen or otherwise.  For the avoidance of any doubt, clauses (a) to (g) above apply whether such damage or loss is direct, indirect, consequential or otherwise. (“Liability” means liability in or for breach of contract, negligence (as defined by Philippine law), misrepresentation, tortious claim, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement.)

8.4   Interpretation: The headings to and within Clauses of this Agreement are for convenience and reference only and do not form a part of this Agreement and shall not in any way affect the interpretation of this Agreement.

8.5   Definitions: In this Agreement: (i) “Agreement” means the two pages of this Co-operation Agreement document (i.e. these General Terms & Conditions of Groupon Co-operation Agreements, together with the front sheet which contains various definitions/commercial terms agreed by the parties); (ii) “Day” means a period of 24 consecutive hours; and (iii) “Month” means a block period of 30 Days that is after the period which is within 30 Days of the Start Date.

8.6   Law and jurisdiction: This Agreement, and all non-contractual obligations arising out of or connected to it, shall be governed by the laws of the Philippines. Each party submits to the non-exclusive jurisdiction of the Philippine courts.

  1. PRIVACY AND CONFIDENTIALITY OF INFORMATION

9.1   Partner acknowledges that all information provided to it by Groupon is provided solely to enable the Partner to supply Voucher Services to Customers and for no other reason.  Both Partner and Groupon shall at all times comply with the applicable provisions of the Privacy Act 1998 and the National Privacy Principles..

9.2   All information regarding  Customers, including but not limited to: email address, names date of birth and residential or delivery address remains at all times the property of Groupon and may only be used by Partner to enable the delivery of the Voucher Services in respect of which the information is provided and for no other reason.