When they email you they give you some "canned" excuse. then you have to email back. I have not clue to who I was emailing because it seemed like a different person each time responded. The issue I was having with them was per their contract they are to take all refunds and charge backs from credit card payments they owe you then do transfer. If they cannot they can attempt and ACH transfer or you have to pay them. NO where does it say they require you to have an ACH debit available to them I have an extremely secured bank account. I have blocked all ACH withdrawals since I have had fraudulent withdrawals made from my account many times from various people with fake business. All they need to do is get your bank account number. They then can call the bank or look at the banks webpage and find out the routing number of the bank and withdraw from your account. The only way I could stop this from continuing to happen was blocked all debits out of my account. In this day and age of fraud like what happened at Target this Christmas no one can be to careful.
Breadcrumb takes their fees out of credit card payments before they transfer in the money to me. It worked perfect. There was a glitch in the breadcrumb system and a client got double charged. So I issued a refund. If breadcrumb would have done what their agreement states they are going to do and take it out of my payments due me would have gone smoothly. Instead they try on several occasions to withdraw out of my account. Mind you during this time. I am still letting my clients charge. So they have a reserve to draw from. They keep attempting to with drawn but failed to deposit payments to me. I contact them and their customer service said I am required to let them do an ACH withdrawal and to read my agreement. I finally get an email from under writing team stating the same thing. We go back and forth a couple of days with their snotty little canned emails. They send me a link to the agreement. Wow so no on in their department has clearly ever read their agreement. I attached a copy on the bottom of this so you can read it as well. I had to pull in the other side of groupon to try and help me. She even emailed them to try and help they gave her the same canned lines. She said she was so sorry that I was getting the run around. I emailed them about 4 times their own copy of the agreement pointing out where they had to take out of payments due me. They finally said yes you are correct but we will do that but we are holding onto the money for 90 days for any charge backs. This I also had to point out was a violation of their own agreement. They are to take chargebacks out of payments due me. They finally said they would be sending the money to my account in the next few days. I asked them to reinstate my account since it was their error and they did not read their own agreement. They said I would have to have an account they could debit. Again had to point out that is not part of the agreement and they need to honor the agreement. They said I was abusive to them. Sending them countless copies of their own agreement trying to point out how they are in the wrong is not abusive. It is getting them to to their job. I even pointed out the code of conduct that Groupon requires of all their employees because apparently they have not read that either. They said they have closed my claim. I said wow you could not even apologies for you error and failure to know your own agreement instead they slandered me in each of the emails. So Breadcrumbs I will be forwarding all correspondence to your board of directors, HR and CEO. I am also considering contacting news agency to let them know the fledgling company breadcrumbs has not a clue what they are doing. All I need to do is give them copies of all correspondence.
It is one thing to change your agreement and give all companies dealing with you advance notice for them to decide if they are willing to let have someone withdrawal access to their business account. I have had credit card processing companies double withdraw their monthly payments as well as decide they had to hold the money for a couple of days more. As well as come in with low rates and they sky rocket after a few months. That is why I ended my relationships with them. Breadcrumbs is trying to compete with square. Square told me right from get go they would need access to my account and I choose not to do business with them. The beauty of breadcrumbs is they did not. Since we had a relationship on the Groupon deal side I thought they would be up and up. How wrong I was. What is even worse I have told many of my clients who own businesses how great they were to deal with. They were until you have an issue. So I will be letting them read all the correspondence so they know not to make the same mistake I did.
I will also mention it is two weeks and I have not been paid the money I work 16 hours on my feet a day for. We shall see if they really deposit the money that is owed me. TICK TOCK TICK TOCK
GROUPON PAYMENTS MERCHANT USER AGREEMENT
This Groupon Payments Merchant User Agreement and the Merchant Account Application together constitute a legal agreement (“Agreement”) between the sole proprietor or business listed as the “Merchant” on the Merchant Account Application (sometimes referred to as “you” or “your”) and Groupon, Inc. (“Groupon”, “we”, “our” or “us”).1. The Groupon Service
1.1 Our Role. Our service is a payment service that helps you accept and process credit card, debit card and other types of card payments (collectively “cards”) from your customers in exchange for your products and services (“Service” or “Groupon Service”). Groupon is not a bank or a money services business (“MSB”) and Groupon does not offer banking or MSB services as defined by the United States Department of Treasury. In addition, we do not assume any liability for the products or services purchased using our Service. You will be required to register for a service account to use the Groupon Service (see Your Groupon Service Account).
1.2 Our Software. We provide an application programming interface and other software that you may use in conjunction with the Service. If you elect to utilize this software, we reserve the right to require you install or update any and all software updates to continue using the Service. Our Service also includes software to help you manage recurring and subscription billing charges for your products and services. It is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Card Network (defined below) payment rules.
1.3 Authorization for Handling of Funds. By accepting this Agreement, you authorize us to hold, receive, and disburse funds on your behalf when such funds from your card transactions settle from the Card Networks (defined below). You further authorize Groupon to instruct our acquiring bank, Wells Fargo, N.A. (“Wells Fargo”), in the manner of how your card transaction settlement funds should be disbursed to you (such as by ACH credit transaction or sending you a paper check payable to you) and the timing of such disbursements. You also authorize Wells Fargo and/or Groupon to hold settlement funds in a deposit account at Wells Fargo pending disbursement of the funds to you in accordance with the terms of this Agreement. You agree you are not entitled to any interest or other compensation associated with the settlement funds held in the deposit account at Wells Fargo pending settlement to your designated bank settlement account, that you have no right
to direct that deposit account, and that you may not assign any interest in the deposit account at Wells Fargo. From time to time, we may make available to you information in the Groupon Service Account (defined below) regarding anticipated settlement amounts that we have received on your behalf from the Card Networks and are being held by us pending settlement. This settlement information does not constitute a deposit or other obligation of Groupon or Wells Fargo to you. This settlement information reflected in the Groupon Service Account is for reporting and informational purposes only, and you are not entitled to, and have no ownership or other rights in settlement funds, until such funds are credited to your designated bank settlement account. Your authorizations set forth herein will remain in full force and effect until your Groupon Service Account is closed or terminated.
to direct that deposit account, and that you may not assign any interest in the deposit account at Wells Fargo. From time to time, we may make available to you information in the Groupon Service Account (defined below) regarding anticipated settlement amounts that we have received on your behalf from the Card Networks and are being held by us pending settlement. This settlement information does not constitute a deposit or other obligation of Groupon or Wells Fargo to you. This settlement information reflected in the Groupon Service Account is for reporting and informational purposes only, and you are not entitled to, and have no ownership or other rights in settlement funds, until such funds are credited to your designated bank settlement account. Your authorizations set forth herein will remain in full force and effect until your Groupon Service Account is closed or terminated.
1.4 Payment Methods. Groupon’s card processing service supports any US-issued card and most non-US issued cards with a Visa, MasterCard, Discover, or American Express logo (collectively, “Card Networks”) including credit, debit, pre-paid, or gift cards. Groupon will only process card transactions that have been authorized by the applicable Card Network or card issuer. You are solely responsible for verifying identity of users and of the eligibility of a presented payment card used to purchase your products and services, Groupon does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back (see Chargebacks below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the Reversal or Chargeback (defined below). Groupon may add or remove one or more types of cards as supported payment card any time without prior notice to
you.
you.
1.5 Compatible Mobile Devices and Third Party Carrier Fees. The Service permits you to accept payment card transactions on a compatible mobile device. Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to disabling hardware or software controls—sometimes referred to as “jailbreaking”—are not compatible mobile devices. You acknowledge that the use of a modified device to use the Service is expressly prohibited, constitutes a violation of the terms of this Agreement, and is grounds for termination of your Groupon Service Account. Groupon does not warrant that the Service will be compatible with your mobile device. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer and your carrier. The Service is currently available on: AT&T, T-Mobile®, Sprint, Nextel, Virgin Mobile, Verizon Wireless, Alltel, Dobson, Cellular One, NTelos, US Cellular
and Cincinnati Bell.
and Cincinnati Bell.
1.6 Customer Service. We will provide you with customer service to resolve any issues relating to your Groupon Service Account, your card payment processing and use of our software, and the distribution of funds to your designated bank settlement account. You, and you solely, are responsible for providing service to your customers for any and all issues related to your products and services, including but not limited to issues arising from the processing of your customers’ payment cards through the Service. In providing customer service to your customers, you will always present yourself as a separate entity from us.
1.7 Your Customer Information. This Section 1.7 only applies to you if you use our software in connection with the Service. Data stored by you in your Groupon Service Account about your customers, including their payment information such as credit card numbers and bank account numbers, is your property. If you require an export of that data either to switch payment processors or for another purpose, we will make available to you your user data. Both you and we have a responsibility to ensure that customer data is kept secure in a PCI-compliant environment. If you request, we will send you an encrypted copy of your customer data, to be unencrypted in a PCI-compliant environment. We reserve the right to request outside verification that your environment is PCI-compliant and secure, before sending you your encrypted customer data. In addition, if you use our software to collect and/or store your customers’ contact information, including but not limited
to email address and phone number, you acknowledge and agree that, as between you and Groupon, you are solely responsible for the storage, access to, and use of such information, and Groupon disclaims any and all warranties with respect to the security of such information.
to email address and phone number, you acknowledge and agree that, as between you and Groupon, you are solely responsible for the storage, access to, and use of such information, and Groupon disclaims any and all warranties with respect to the security of such information.
1.8 Taxes. It is your responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Service (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services. Pursuant to the Internal Revenue Code, merchant acquiring entities and third party settlement organizations are required to file an information return with the IRS for each calendar year, reporting all payment card transactions and third party network transactions with merchants occurring in that calendar year.
You acknowledge that Groupon will report to the Internal Revenue Service the total amount of the payments you receive each calendar year if you (a) receive more than $20,000 in gross card transactions, and (b) receive more than 200 card payment transactions, in that calendar year.
You acknowledge that Groupon will report to the Internal Revenue Service the total amount of the payments you receive each calendar year if you (a) receive more than $20,000 in gross card transactions, and (b) receive more than 200 card payment transactions, in that calendar year.
1.9 Security. Groupon maintains commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding you and your customers that is stored in our servers from unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
1.10 Data Security. You are fully responsible for the security of data collected on your website or otherwise in your possession. You agree to comply with all applicable state and federal laws and rules in connection with your collection, security and dissemination of any personal, financial, card, or transaction information (collectively, “Data”) on your website. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards (PCI-DSS) and the Payment Application Data Security Standards (PA-DSS), as applicable. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. You also agree that you will use only PCI compliant service providers in connection with the storage, or transmission of payment card data including without limitation account number, expiration date, and card security code (also known as CVV2) (“Card Data”). You must not
store card security code data at any time. Information on the PCI DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
store card security code data at any time. Information on the PCI DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.
1.11 Audit Right. If we believe that a security breach or compromise of data has occurred, Groupon may require you to have a third party auditor that is approved by Groupon conduct a security audit of your systems and facilities and issue a report to be provided to Groupon, financial banks, and the Card Networks.
1.12 Privacy. Your privacy and the protection of your data are very important to us. Upon acceptance of this Agreement you confirm that you have read, understood and accepted Groupon’s Privacy Policy.
1.13 Privacy of Others. If you receive information about others, including cardholders, through the use of the Service, you must keep such information confidential and only use it in connection with the Service. You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose Card Data to any third party, other than in connection with processing a card transaction requested by the buyer customer, and in such case, only in accordance with the terms of this Agreement.
1.14 Restricted Use.
(a) You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the credit available on any card to provide cash advances to cardholders,(ii) submit any card transaction for processing that does not arise from your sale of goods or service to a buyer customer, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use your Groupon Service Account or the Service in a manner that Visa, MasterCard, American Express, Discover or any other payment brand reasonably believes to be an abuse of the Card Network or a
violation of Network Rules.
violation of Network Rules.
(b) You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access Groupon systems, programs or data that are not made available for public use: (ii) copy, reproduce, alter, modify, create derivative works of, publicly display, republish, upload, post, transmit, resell or distribute in any way material from Groupon; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working
of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
1.15 Suspicion of Unauthorized or Illegal Use. We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other Groupon agreement, or exposes you, other Groupon users, our processors or Groupon to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, and/or your Groupon Service Account if we reasonably suspect that your Groupon Service Account has been used for an unauthorized, illegal, or criminal purpose.
1.16 Card Network Rules. The Card Networks have established guidelines, bylaws, rules, and regulations (“Network Rules”). You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules at the Visa and MasterCard websites. The Card Networks reserve the right to amend the Network Rules. Groupon reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service. If we process American Express card transactions for you, you represent that you agree to be bound by the American Express Card Acceptance Agreement (“Amex Agreement”). You further acknowledge and agree that American Express Travel Related Services Company, Inc. may have different servicing terms (e.g., different speeds of pay) than the servicing terms set forth in this Agreement.
1.17 Disclosures and Notices. You agree that Groupon can provide disclosures and notices regarding the Service and this Agreement to you by posting such disclosures and notices on our website, emailing them to the email address listed in your Groupon Service Account, or mailing them to the address listed in your Groupon Service Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
2. Your Groupon Service Account
2.1 Registration.
(a) The Groupon Service is only made available to persons in the United States that operate a business selling goods and services, and the Groupon Service is not made available to persons to accept card payments for personal, family or household purposes. To use the Service for your business, you will first have to register for a Groupon Service account (“Groupon Service Account”). When you register for a Groupon Service Account, we will collect basic information including your name, company name, location, email address, tax identification number and phone number. You must provide accurate and complete information in response to our questions. You must also keep the information that you provide up-to-date. If you have not already done so, you will also be required to provide an email address and password for your Groupon Service Account.
(b) You may choose to register as an individual (sole proprietor) or as a company or business. If you register as a company or business, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. In order to sign up a business to use the Service, you must agree to this Agreement on behalf of the business.
2.2 Company Descriptions and Site URL. As part of your registration, you must provide your site URL (e.g. www.mystore.com) and the name under which you do business (which may be the business’s legal name or a “doing business name”) (e.g. MyStore Online Widgets). These two fields may appear in your customers’ credit or debit card statements. To avoid customer confusion and transaction disputes, it is important that you enter a description that clearly identifies your business as well as an accurate site URL. You agree to indemnify Groupon from any costs from disputes due to your failure to do so.
2.3 Merchant Loyalty Program.
(a) The Service enables you to provide loyalty programs to your customers through your Groupon Service Account. You are solely responsible for ensuring that your customer loyalty programs and the associated rewards issued to your customers (“Rewards”) comply with all applicable local, state and federal laws, statutes, rules, and regulations (“Laws”) including Laws governing vouchers, gift cards, coupons, and/or gift certificates.
(b) You agree to make all terms and conditions governing your program available to your customers and to comply with such terms and conditions at all times. You further agree to handle all customer disputes arising in connection with your loyalty program. We reserve the right to prohibit you from using the Service to offer a Reward that we determine violates applicable Laws or adversely affects Groupon’s reputation as a result of our association with the Reward.
(c) Groupon uses data collected from our processing of card transactions for you pursuant to the Service to (i) enable you to offer your loyalty program to your customers and (ii) illustrate and analyze Groupon customers’ purchasing behavior and the return on investment associated with Groupon’s products and services.
(d) Merchant grants to Groupon a non-exclusive worldwide license and right to use, Merchant's name, logo and any trademarks ("Merchant Marks") and any photographs, graphics, artwork, text and other content provided by Merchant ("Content") in connection with the marketing, promotion and/or distribution of Merchant’s Rewards in any and all media and formats including on any website owned, operated, controlled, or powered by Groupon and in emails distributed by Groupon to customers.
2.4 Verification and Underwriting.
(a) To verify your identity, we will require certain information including your business EIN or Tax ID, social security number, and date of birth. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, a driver’s license or other government issued identification, or a business license. We may ask you for financial statements. We may request your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five (5) days may result in suspension or termination of your Groupon Service Account. You authorize us to retrieve additional information about you from third parties and other identification services. Groupon may use your information to apply for card merchant acquiring accounts on your behalf with certain Card Networks (such as
American Express).
American Express).
(b) After we have collected and verified all your information, Groupon will review your account and determine if you are eligible to use the Service. Groupon may also share your information with our payment processors (such as Wells Fargo), each of which may also make a determination regarding your eligibility. We will notify you once your account has been either approved or deemed ineligible for use of the Service.
(c) By accepting the terms of this Agreement, you are providing us and the Card Networks with authorization to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. Groupon may periodically update this information to determine whether you continue to meet the eligibility requirements for a Groupon Service Account.
(d) You agree that Groupon is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Groupon Service Account with the payment processor, including Wells Fargo. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the program, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct Groupon’s risk management process.
2.5 Groupon Service Account – United States Only. By registering for a Groupon Service Account, you are confirming to be either a legal resident of the United States, a United States citizen or a business entity authorized to conduct business in the state in which it operates. The Service and your Groupon Service Account may only be used in the fifty states of the United States of America and the District of Columbia. You may not export the Service directly or indirectly, and you acknowledge that the Service may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
By accepting this Agreement you confirm that you satisfy the requirements set forth in this Agreement.
2.6 Prohibited Businesses. By registering for a Groupon Service Account, you are confirming that you will not accept payments in connection with the following businesses, business activities or business practices: (1) door-to-door sales, (2) offering gifts, enticements, rebates or special incentives to the cardholder subsequent to the original purchase, (3) negative response marketing, (4) engaging in deceptive marketing practices, (5) sharing cardholder’s data with another merchant for payment of up-sell or cross-sell product or service, (6) evading Card Network’s chargeback monitoring programs, (7) engaging in any form of licensed or unlicensed aggregation or factoring, (8) airlines, (9) age restricted products or services, (10) bail bonds, (11) bankruptcy lawyers, (12) bidding fee auctions, (13) collection agencies, (14) chain letters, (15) check cashing, wire transfers or money orders, (16) counterfeit goods, (17) currency exchanges or dealers,
(18) embassies, foreign consulates or other foreign governments, (19) firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down, (20) credit card and identity theft protection, (21) cruise lines, (22) essay mills, (23) flea markets, (24) drug paraphernalia, (25) extended warranties, (26) fortune tellers, (27) gambling, (28) sports forecasting or odds making, (29) illegal products or services, (30) mail-order brides, (31) marijuana dispensaries and related businesses, (32) money transmitters or money service businesses, (33) multi-level marketing or pyramid schemes, (34) non-institutional pharmacies, (35) pseudo pharmaceuticals including anti-aging pills, sex nutrients and diet pills, (36) quasi-cash or stored value, (37) securities brokers, (38) sexually-oriented or pornographic products or services, (39) shipping, freight forwarders or forwarding brokers,
(40) substances designed to mimic illegal drugs, (41) telemarketing, (42) timeshares, (43) tobacco and e-cigarettes, (44) weapons and munitions including firearms, guns, explosives and ammunition, (45) virtual currency that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world and (46) age verification, (47) golf clubs or accessories, (48) merchants offering prizes, sweepstakes or contests as an inducement to purchase a product or service, (49) prepaid phone cards, phone services and cell phones, (50) programs on how to apply for low interest credit cards and (51) travel agencies and travel clubs.
(18) embassies, foreign consulates or other foreign governments, (19) firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down, (20) credit card and identity theft protection, (21) cruise lines, (22) essay mills, (23) flea markets, (24) drug paraphernalia, (25) extended warranties, (26) fortune tellers, (27) gambling, (28) sports forecasting or odds making, (29) illegal products or services, (30) mail-order brides, (31) marijuana dispensaries and related businesses, (32) money transmitters or money service businesses, (33) multi-level marketing or pyramid schemes, (34) non-institutional pharmacies, (35) pseudo pharmaceuticals including anti-aging pills, sex nutrients and diet pills, (36) quasi-cash or stored value, (37) securities brokers, (38) sexually-oriented or pornographic products or services, (39) shipping, freight forwarders or forwarding brokers,
(40) substances designed to mimic illegal drugs, (41) telemarketing, (42) timeshares, (43) tobacco and e-cigarettes, (44) weapons and munitions including firearms, guns, explosives and ammunition, (45) virtual currency that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world and (46) age verification, (47) golf clubs or accessories, (48) merchants offering prizes, sweepstakes or contests as an inducement to purchase a product or service, (49) prepaid phone cards, phone services and cell phones, (50) programs on how to apply for low interest credit cards and (51) travel agencies and travel clubs.
By accepting this Agreement you confirm that you will satisfy these requirements.
3. Processing Card Transactions and Receiving Your Funds
3.1 Processing Card Transactions.
(a) You agree that you will honor all eligible cards presented for payment by your customers for your goods and services in accordance with the Network Rules, this Agreement and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Card Network(s) for each card transaction, as required under the Network Rules, and will not submit a card transaction for settlement where there is a negative authorization or the card is otherwise expired. You acknowledge that the existence of an affirmative authorization from us or the Card Networks does not mean that a particular card transaction will not be subject to Chargeback, Reversal or Claim (as such terms are defined in Section 4 below) at a later date.
(b) You agree to request that your customer personally sign for all transactions greater than $25.00 when your customer is present. You will provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Network Rules and applicable law.
(c) You will submit all card transactions for processing no later than three (3) days from the date of authorization. You will maintain appropriate records of all card transactions for a period of at least two (2) years from the date of the transaction.
(d) You will display all Card Network marks in accordance with the policies of the Card Networks, and will use such marks only to indicate that you accept their cards for payment.
3.2 Payouts and Transaction History.
(a) We will pay out funds settling from the Card Networks to your designated bank settlement account in the amounts actually received (less our Fees as defined below) for card transactions submitted to our Service. The payouts will be made to the bank account you provide for your Groupon Service Account (“Bank Account”). The Bank Account must be an account located at bank in the United States and held in the name of the business. You are responsible for the accuracy and correctness of information regarding your Bank Account. Funds for any given transaction will not be transferred to your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received funds settling from the Card Networks and when we or our processing financial institutions have accepted such funds. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule as defined below.
(b) After each payout of card settlement funds to your Bank Account, we will update information in your Groupon Service Account to reflect settlement. Information regarding your card transactions processed and settled with the Services (“Transaction History”) will be available to you when you login to our website using your Groupon Service Account. We provide a minimum of one year of Transaction History on our website. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Groupon Service Account, your Transaction History and your use of the Service.
3.3 Payout Schedule. The term “Payout Schedule” means the time it takes for us to initiate a transfer to your Bank Account of settlement funds arising from card transactions processed through the Service. Once your Bank Account information has been reviewed, Groupon will initiate transfer of settlement funds (net Fees, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule, the terms of which will be made available to you when you login to our website using your Groupon Service Account. The settlement funds should normally be credited to your Bank Account within 1-2 days of us initiating the payout. We may defer deposits of card-not-present sales for new accounts for an additional number of days, not to exceed 30, in our sole judgment (“Deferment Period”). Groupon will consider a variety of factors, including but not limited to the credit-worthiness of the business and its owner(s) and the transaction
history of the account, in determining the Deferment Period. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your Bank Account. You can contact Groupon to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for Groupon to review your Payout Schedule. Groupon and/or Wells Fargo reserves the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with your use of the Service or if required by law or court order.
history of the account, in determining the Deferment Period. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your Bank Account. You can contact Groupon to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for Groupon to review your Payout Schedule. Groupon and/or Wells Fargo reserves the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with your use of the Service or if required by law or court order.
3.4 Reconciliations and Errors.
(a) Your Transaction History will be available to you when you login to our website using your Groupon Service Account. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
(b) If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Groupon Service Account as appropriate. Groupon will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
3.5 Refunds and Returns.
(a) You agree to submit any and all refunds and adjustments for returns of your products and services through the Groupon Service to the cardholder’s card in accordance with the terms of this Agreement and Network Rules. Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a card sale refund.
(b) Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other fees relating to the transaction. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a Chargeback relating to such sales. Refunds processed though the Groupon Service must be submitted within sixty (60) days of the original transaction but in all cases, within three (3) days of approving the cardholder refund.
(c) For processed refunds, Groupon will deduct the refund amount (including any applicable Fees) from (i) settlement funds owed to you from processing of other card transactions, or (ii) funds in any Reserve Account (defined below). If these funds are not sufficient, you authorize Groupon to initiate an ACH debit entry to your Bank Account in the amount necessary to complete the refund transaction to the cardholder’s card. In the event Groupon cannot access your Bank Account by means of ACH debit entry, you agree to pay all funds owed to Groupon upon demand. You are solely responsible for accepting and processing returns of your products and services; Groupon has no responsibility or obligation for processing such returns.
3.6 Chargebacks.
(a) A Chargeback (defined below in Section 4.6) is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed charge backs for: (i) customer disputes, or (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Card Network, our processor or acquiring bank, or the cardholder bank.
(b) When a Chargeback is issued, you are immediately liable to Groupon for the full amount of payment of the Chargeback plus any associated Fees, fines, expenses or penalties (including those assessed by the Card Networks or our payment processors). You agree that Groupon may recover these amounts by debiting by means of ACH debit of your Bank Account associated with your Groupon Service Account, debiting your Reserve Account, or setting off any amounts owed to you by us. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid Chargebacks unpaid by you.
(c) Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
3.7 Contesting your Chargebacks. You or Groupon may elect to contest Chargebacks assessed to your account. Groupon may provide you with assistance including notifications and software to help contest your Chargebacks. We do not assume any liability for our role or assistance in contesting Chargebacks. You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the cardholder, the cardholder’s financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed. If the cardholder’s issuing bank or the Card Network does not resolve a dispute in your favor, we may recover the Chargeback amount and any associated fees
from you as described in this Agreement. We reserve the right, upon notice to you, to charge a fee for mediating or investigating Chargeback disputes.
from you as described in this Agreement. We reserve the right, upon notice to you, to charge a fee for mediating or investigating Chargeback disputes.
3.8 Excessive Chargebacks. At any point, Groupon, Wells Fargo, the Card Networks, or our payment processor(s) may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Groupon Service, including without limitation, (a) changes to the terms of your Reserve Account, (b) increases to your applicable Fees, (c) delays in your Payout Schedule, or (d) possible suspension or termination of your Groupon Service Account and the Service. The Card Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
3.9 Groupon Fees. You agree to pay the fees assessed by us to you for providing the payment services described in this Agreement (“Fees”). These Fees will be calculated pursuant to the fee schedule linked to here, which is incorporated into this Agreement by reference. We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you. You acknowledge that you are also responsible for any penalties or fines imposed on Groupon or directly to you by any Card Network or financial institution as a result of your activities. Additionally, Groupon and/or Wells Fargo reserve the right to report any delinquencies by you to the appropriate credit reporting agencies.
3.10 Our Collection Rights. To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from the Reserve Account or from funds payable to you arising from the settlement of card transactions. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts or Reserve Account are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your Groupon Service Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable
interest. Additionally, we may require a personal guarantee from a principal of a business for funds owed under this Agreement.
interest. Additionally, we may require a personal guarantee from a principal of a business for funds owed under this Agreement.
3.11 Reserves.
(a) Funds held in reserves are amounts of money set aside to cover Chargebacks, refunds, or other payment obligations under this agreement (a “Reserve Account”). Groupon, in its sole discretion, will set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in the Reserve Account. Groupon, in its sole discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our payment processors.
(b) Groupon may fund the Reserve Account by means of: (i) any funds payouts made or due to you for card transactions submitted to the service, or (ii) amounts available in your Bank Account by means of ACH debit to that Bank Account, or (iii) other sources of funds associated with your Groupon Service Account; or (iv) requesting that you provide funds to Groupon for deposit to the Reserve Account.
3.12 Security Interest. You grant us a lien and security interest in the Reserve Account, all card transactions (including future card transactions), any rights to receive credits or payments under this Agreement, and all deposits and any other accounts, monies or assets possessed by you. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain and enforce this security interest.
3.13 Data Use. Merchant understands and agrees that, in conjunction with the Service and subject to the terms of this Agreement, Groupon and/or our third party partners and service providers may collect, process, use and disclose data related to our provision of the Service to you (i) to process transactions for you, (ii) for fraud prevention purposes, (iii) in connection with other services Groupon makes available to you (e.g., creation of your customer loyalty program) (iv) to make recommendations to you for additional Groupon products and services, (v) to provide you with data related to your customer transactions, and (vi) in aggregate form for analytics purposes including, but not limited to, gaining greater insight into market trends and Groupon customers’ and your customers’ purchasing behavior (“Data Use”). In furtherance of the foregoing, Merchant agrees and authorizes Groupon, its service providers and data processing partners to share
and transmit to Groupon and/or its service providers electronic payment transaction records captured by you or on your behalf. Groupon will use commercially reasonable security measures in accordance with its internal information security policies in its transmission, storage, and processing of such transaction records. In connection with any Data Use contemplated by Section 3.13(vi) above, Merchant will not be identified as the source of any such data without your consent.
and transmit to Groupon and/or its service providers electronic payment transaction records captured by you or on your behalf. Groupon will use commercially reasonable security measures in accordance with its internal information security policies in its transmission, storage, and processing of such transaction records. In connection with any Data Use contemplated by Section 3.13(vi) above, Merchant will not be identified as the source of any such data without your consent.
4. Termination and Other General Legal Terms
4.1 Term. Provided Groupon and Wells Fargo approve Merchant’s application, the Agreement will become effective upon the date you agree to it (by electronically indicating acceptance) (“Effective Date”) and will continue until terminated in accordance herewith. For the avoidance of doubt, Merchant is not entitled to use the Service unless and until Groupon and Wells Fargo approve Merchant’s application.
4.2 Termination. You may terminate this Agreement by closing your Groupon Service Account at any time by following the instructions on our website in your Account Profile. We may terminate this Agreement and close your Groupon Service Account at any time for any reason effective upon providing you notice in accordance with Section 1.17 above. We may suspend your Groupon Service Account and your access to the Service and any funds in your Groupon Service Account, or terminate this Agreement, if (a) we determine in our sole discretion that you are ineligible for the Service because of the risk associated with your Groupon Service Account, including without limitation significant credit or fraud risk, or for any other reason, (b) you do not comply with any of the provisions of this Agreement, or (c) upon request of a Card Network or a card issuer.
4.3 Effects of Termination.
(a) Upon termination and closing of your Groupon Service Account, we will immediately discontinue your access to the Service. You agree to complete all pending transactions, immediately remove all logos for cards, and stop accepting new transactions through the Service. You will not be refunded the remainder of any Fees that you have paid for in connection with the Service if your access to or use of the Service is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your payout schedule.
(b) Termination does not relieve you of your obligations as defined in this Agreement and Groupon may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, refunds, or other investigations or proceedings.
(c) Upon termination you agree: (i) to immediately cease your use of the Service (ii) to discontinue use of any Groupon trademarks and to immediately remove any Groupon references and logos from your Site (iii) that the license granted under this Agreement shall end, (iv) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (v) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Service or deletion of your information or account data.
4.4 Your License. Groupon grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive. The Service includes our website, any software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) thereto provided to you by Groupon. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when Groupon makes these updates available.
4.5 Ownership; Confidentiality.
(a) The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to our trademarks or service marks.
(b) For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
(c) You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Groupon under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Groupon does not waive any rights to use similar or related ideas previously known to Groupon, or developed by its employees, or obtained from sources other than you.
(d) “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by us to you in connection with the Service and/or this Agreement (whether before, on or after the Effective Date) which you know or should know, given the facts and circumstances surrounding the disclosure, is our confidential information. Confidential Information includes, but is not limited to, the components of the business plans, the Service, inventions, design plans, financial plans, pricing schedules, computer programs, know-how, merchant information, strategies and other similar information. You agree to maintain in confidence the Confidential Information and will not use or disclose such Confidential Information except as expressly permitted by this Agreement. You agree to use the same degree of care in protecting the Confidential Information as you use to protect your own confidential information from unauthorized
use or disclosure, but in no event less than reasonable standard of care. In addition, you will not reproduce Confidential Information, in any form, except as required to accomplish your obligations under this Agreement. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement through no fault of yours; (ii) you can demonstrate through documentation was in your possession prior to first receiving it from us; (iii) you can demonstrate was developed by you independently and without use of or reference to the Confidential Information; or (iv) you receive from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
use or disclosure, but in no event less than reasonable standard of care. In addition, you will not reproduce Confidential Information, in any form, except as required to accomplish your obligations under this Agreement. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement through no fault of yours; (ii) you can demonstrate through documentation was in your possession prior to first receiving it from us; (iii) you can demonstrate was developed by you independently and without use of or reference to the Confidential Information; or (iv) you receive from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
4.6 Your Liability.
(a) You are responsible for all Reversals, Chargebacks, Claims, fines, fees, penalties and other liability arising out of or relating to your breach of this Agreement, and/or your use of the Service. You agree to reimburse your customer, Groupon, Wells Fargo and any third party designated by Groupon or Wells Fargo for any and all such liability. "Chargeback" means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. "Claim" means a challenge to a payment that you or a buyer customer files directly with Groupon. "Reversal" means the reversal by Groupon of the settlement of funds from a processed card transaction that you received because (1) the card transaction is invalidated by the card issuer, (2) the settlement funds were sent to you in error by (i) Groupon or Wells Fargo; (ii) the processors, suppliers or licensors of Groupon or Wells Fargo; or (iii) any of the respective
affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (3) the sender of the payment did not have authorization to send the payment (for example: the buyer used a card that did not belong to the buyer), (4) you received the payment for activities that violated this Agreement or any other Groupon agreement, or (5) Groupon decided a Claim against you.
affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (3) the sender of the payment did not have authorization to send the payment (for example: the buyer used a card that did not belong to the buyer), (4) you received the payment for activities that violated this Agreement or any other Groupon agreement, or (5) Groupon decided a Claim against you.
(b) Groupon will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with Groupon by you or your customers. You will be required to reimburse Groupon for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases you may not receive the item back). You will not receive a refund of any fees paid to Groupon.
(c) Without limiting the foregoing, you agree to defend, indemnify, and hold harmless the Disclaiming Entities (defined below) from and against any claim, suit, demand, loss, costs, liability, damage, action, tax assessments, judgments, penalties, interest, expenses or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, (ii) your use of the Service, including without limitation any Reversals, Chargebacks, Claims, fines, fees, penalties and attorneys’ fees, (iii) your, or your employee’s or agent’s, negligence or willful misconduct, (iv) third party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any organization or card issuer), (v) disputes concerning your customer loyalty program, (vi) any claim for state sales or use tax obligations (“Taxes”) arising from the issuance and subsequent redemption of a Reward, (vii) any obligation or
liability imposed on Groupon by any local, state or federal governmental entity resulting from unredeemed Rewards or unredeemed cash values of Rewards or any other amounts under any applicable abandoned or unclaimed property or escheat Laws ("Abandoned Property Claims"); (viii) Merchant’s violation of Laws governing the use, sale, and/or distribution of alcohol; or (ix) the products and services provided by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages. Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorney's fees, related to any action against, or determinations against, Groupon related to any action to pursue Groupon for Taxes or Abandoned Property Claims.
liability imposed on Groupon by any local, state or federal governmental entity resulting from unredeemed Rewards or unredeemed cash values of Rewards or any other amounts under any applicable abandoned or unclaimed property or escheat Laws ("Abandoned Property Claims"); (viii) Merchant’s violation of Laws governing the use, sale, and/or distribution of alcohol; or (ix) the products and services provided by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages. Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorney's fees, related to any action against, or determinations against, Groupon related to any action to pursue Groupon for Taxes or Abandoned Property Claims.
(d) If you are liable for any amounts owed to Groupon, Groupon may immediately remove such amounts from your Reserve Account and deduct the amounts owed to Groupon from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add funds to your Reserve Account to cover funds owed to Groupon. If you do not do so, Groupon may engage in collections efforts to recover such amounts from you at your cost and expense.
4.7 Representation and Warranties. You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and
regulations and all Laws that govern vouchers, gift cards, coupons, and/or gift certificates and any Laws governing the imposition of expiration dates, service charges and dormancy fees related to Merchant’s Rewards; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service (j) your use of the Service will be in compliance with this Agreement, (k) Merchant is registered for sales and use tax collection purposes in all states in which Merchant's goods and services will be provided, (l) Merchant owns all right, title and interest in and to the Merchant Marks and Content and/or has the right to grant the licenses thereto stated in this Agreement; (m) the Merchant Marks and
Content do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws; and (n) the Rewards that Merchant provides through its loyalty program will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws. In addition, to the extent required by applicable escheat or abandoned or unclaimed property Laws, Merchant shall be solely responsible for and agrees to report and pay to the applicable local, state or federal governmental agency any unredeemed cash value of any Reward offered by Merchant under this Agreement. Furthermore, Merchant agrees that if a customer makes an appointment in connection with the redemption of a Reward before the Reward’s expiration date, Merchant will fully honor the Reward without restriction even though the relevant services may be fulfilled after the redemption date.
regulations and all Laws that govern vouchers, gift cards, coupons, and/or gift certificates and any Laws governing the imposition of expiration dates, service charges and dormancy fees related to Merchant’s Rewards; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of the Service (j) your use of the Service will be in compliance with this Agreement, (k) Merchant is registered for sales and use tax collection purposes in all states in which Merchant's goods and services will be provided, (l) Merchant owns all right, title and interest in and to the Merchant Marks and Content and/or has the right to grant the licenses thereto stated in this Agreement; (m) the Merchant Marks and
Content do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws; and (n) the Rewards that Merchant provides through its loyalty program will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws. In addition, to the extent required by applicable escheat or abandoned or unclaimed property Laws, Merchant shall be solely responsible for and agrees to report and pay to the applicable local, state or federal governmental agency any unredeemed cash value of any Reward offered by Merchant under this Agreement. Furthermore, Merchant agrees that if a customer makes an appointment in connection with the redemption of a Reward before the Reward’s expiration date, Merchant will fully honor the Reward without restriction even though the relevant services may be fulfilled after the redemption date.
4.8 No Warranties.
(a) THE SERVICE AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE IS AT YOUR OWN RISK.
(b) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE OR FROM (I) GROUPON OR WELLS FARGO; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) OF GROUPON OR WELLS FARGO; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE “DISCLAIMING ENTITIES” AND INDIVIDUALLY A “DISCLAIMING ENTITY”), AND WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER GROUPON NOR WELLS FARGO HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE SERVICE, AND NEITHER GROUPON NOR WELLS FARGO CAN ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR IS AUTHORIZED TO DO SO.
(c) WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE TIME NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
(d) THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER GROUPON NOR WELLS FARGO WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
4.9 Limitation of Liability and Damages.
(a) IN NO EVENT SHALL A DISCLAIMING ENTITY BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY DIRECT , INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 4.8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR GROUPON SERVICE ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(b) THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (2) UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICE AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (3) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (4) SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; (5) ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (6) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
(c) WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 4.9, THE DISCLAIMING ENTITIES’ CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO GROUPON DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
(d) THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF GROUPON OR WELLS FARGO HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(e) THE PROVISIONS OF THIS SECTION 4.9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
(f) The Service is controlled and operated from its facilities in the United States. Groupon makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
4.10 Disputes; Choice of Law; Jurisdiction and Venue. You agree that any disputes arising out of or relating to this Agreement or the Service shall be resolved in accordance with this Section 4.10. This Agreement is governed by the laws of the State of Illinois (without regard to its choice of law provisions). The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the appropriate state or federal court located in Cook County, Illinois. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. Headings are included for convenience only, and shal
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