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GROUPON MERCHANT CONTRACT GENERAL TERMS AND CONDITIONS AU (VERSION 26 FEBRUARY 2025 – V001E)
This “Agreement” is comprised of (a) these General Terms and Conditions, (b) the Special Terms and Conditions and (c) the Additional Terms and Conditions, if any.
1. Parties‘ Obligations
1.1 Groupon’s Obligations
(1) Groupon shall, based on the specifications provided by the Merchant and set out in the Special Terms and Conditions, design and publish advertisements (the “Advertisements”) for Vouchers (as defined below) which are issued through the Groupon platform.
(2) The Advertisements shall be published for one or more periods of time (“Feature Periods”) and up to a maximum of number of Vouchers (the “Cap”). The length of the Feature Period(s) and their relationship to the respective Cap(s) are specified in the Special Terms and Conditions.
(3) Groupon, in its sole discretion, shall decide when, where and to whom the Advertisements are published during the Feature Period(s).
(4) Voucher shall mean an instrument, in either physical or electronic form, which, when presented to the Merchant within a certain period of time (the “Redemption Period”), shall entitle the holder of such Voucher (the “Voucher Holder”) to receive the Merchant Offering from the Merchant.
(5) Merchant Offering shall mean the goods and/or services specified in the Special Terms and Conditions. (6) The Redemption Period, as set out in the Special Terms and Conditions, may be:
(a) Fixed, where all the Vouchers must be presented to the Merchant by a fixed date (e.g. December 31); or
(b) Relative to Feature Period, where the Redemption Period of the Voucher begins on the first day of the Feature Period and ends a certain period of time (e.g. three months) afterwards; or
(c) Relative to purchase, where the Redemption Period of the Voucher begins with its purchase and ends a certain period of time (e.g. three months) afterwards; and
(d) Staggered, which means that, irrespective of whether the Redemption Period is fixed or relative, for an agreed upon portion of the Cap, the end of the Redemption Period is postponed by an agreed upon period of time (e.g. for 1/3 of the Vouchers the final date for redemption of December 31 is postponed to January 31).
(7) In addition to the Advertisement, Groupon shall have the exclusive right to market and advertise the Vouchers.
1.2 Merchant’s Obligations
(1) The Merchant – not Groupon – is solely responsible for providing the Merchant Offering to the Voucher Holder including, but not limited to, the supply or delivery of the Merchant Offering, customer service, after-sales-service and return management. The Merchant holds Groupon free from any possible claims of the Voucher Holder regarding the Merchant Offering, including, but not limited to, claims of personal injury, death or property damage. Issues arising out of or related to the supply of the Merchant Offering by the Merchant to Voucher Holders do not affect Groupon’s right to retain its Commission.
(2) Prior to Groupon selling Vouchers for the Merchant Offering, Merchant will be provided with a preview of the Advertisement containing the content of the proposed Advertisement based on information that: (a) Merchant has provided; (b) is publicly available on Merchant's website and social media accounts; and/or (c) is sourced from a third party. Merchant shall review this Advertisement preview and notify Groupon if: (x) any of the information on the Advertisement preview is incorrect; (y) anything about the proposed Advertisement does not comply with any applicable laws or regulations; or (z) Merchant is not licensed or otherwise authorised to use any intellectual property featured in the Advertisement preview. The Merchant's representations, warranties and grants described in Sections 2 and 6 will apply to all content in the Advertisement preview unless the Merchant informs Groupon otherwise before the Vouchers are made available for sale.
2. Warranties and Representations
2.1 Merchant’s Warranties and Representations
The Merchant warrants, represents and undertakes that:
(a) it is authorised to enter into this Agreement and that this Agreement is signed by an authorised representative of the Merchant;
(b) it shall inform Groupon in writing immediately of any change that could affect this Agreement;
(c) all information provided by the Merchant and set out in this Agreement is accurate, complete and correct, including, but not limited to, the Merchant Offering, the discount or any shipping dates or delivery timeframes (if applicable);
(d) it has obtained (and shall obtain and maintain throughout the term of this Agreement) all necessary licenses, consents and permissions relevant to this Agreement and to the Merchant Offering;
(e) all data and information provided by the Merchant to Groupon shall (and the Merchant’s behaviour shall at all times) be in compliance with all applicable laws and regulations and in accordance with any guidelines, standards and relevant codes of practice;
(f) in respect of the redemption of Vouchers online (including the use of Voucher and/or security codes generated by Groupon, the Merchant or a third party), the Merchant’s website shall be capable of handling and processing such online redemption;
(g) during the term of this Agreement it shall not give any individuals other than a Voucher Holder who has presented a Voucher to the Merchant a discount for the products and/or services which constitute the Merchant Offering; and
(h) that the price specified in the Special Terms and Conditions as the “original price” was the actual selling price of the Merchant Offering for at least 7 (seven) days prior to the Effective Date of this Agreement.
2.2 Groupon’s Warranties and Representations
(1) Groupon warrants, represents and undertakes that it will execute its obligations arising under or in connection with this Agreement with reasonable care and skill.
(2) Groupon does not warrant or guarantee that services offered on or through the Internet will be uninterrupted or error-free or that its services will result in any revenue or profit for the Merchant.
3. Exclusion of Liability
(1) Groupon does not exclude or limit any liability that cannot be excluded or limited by applicable law.
(2) Subject to section 3. (1), Groupon shall not be liable for any indirect loss. Further, Groupon shall not be liable, whether directly or indirectly, for (i) loss of actual or anticipated profits; (ii) loss of goodwill; or (iii) loss of data and/or the costs of restoration of data.
(3) Subject to sections 3. (1) and (2), Groupon’s total liability under this Agreement, howsoever arising, shall in no circumstances exceed the lower of $1,000 or the cumulative total amount of Commission Groupon has received under this Agreement.
4. Payment and Payment Terms
4.1 Voucher Price Collection
Groupon shall collect from the sale of each Voucher the purchase price of such Voucher (the “Voucher Price”), as set out in the Special Terms and Conditions or as varied under section 4.2(4). If the Voucher is redeemed (as defined below) Groupon shall deduct from the Voucher Price: (a) its Commission, as set out in the Special Terms and Conditions, (b) a percentage of the Voucher Price defined in the Special Terms and Conditions as payment for credit card / administrative fees, and (c) any legally applicable GST in respect of (a) and (b), and remit the balance (the “Remittance Amount”) to the Merchant.
4.2 Payment Terms
(1) The Merchant shall receive the Remittance Amount only for Vouchers where the Merchant has informed Groupon, within 60 days following the end of the Redemption Period applicable to that Voucher (the “Notice Period”), that such Voucher was redeemed. Groupon shall remit the Remittance Amount for redeemed Vouchers to the Merchant within 25 days after it has been informed of the redemption of the Voucher. For the avoidance of doubt, Groupon’s Commission in respect of a Voucher shall become due when the Voucher is sold and Groupon is under no obligation to transfer any amounts (including, but not limited to, any Remittance Amount) to the Merchant where a Voucher is not redeemed or, even if redeemed, the Merchant informs Groupon of the same after expiry of the Notice Period.
(2) The parties agree that a Voucher is redeemed when:
(a) The Voucher Holder has presented the Voucher to the Merchant within the Redemption Period;
(b) The Merchant has delivered the Merchant Offering in full to the Voucher Holder;
(c) The Merchant has provided to Groupon evidence of (a) and (b) prior to the end of the Notice Period (including the Voucher security code and/or other evidence Groupon may reasonably request as proof of the provision of the Merchant Offering, for example, but not limited to, a delivery confirmation in case of delivery of physical goods); and
(d) The Voucher Holder whose Voucher or Voucher’s security code the Merchant has submitted to Groupon has not asked Groupon for a refund and Groupon has not given the Voucher Holder a refund.
For the avoidance of doubt, if any of the above four described requirements are not met, a Voucher is not redeemed and Groupon is under no obligation to pay the Merchant any amount in respect of that Voucher.
(3) In the event of a Merchant Offering which comprises the provision of services over an extended period of time (for example, a gym membership or multiple yoga sessions) ("Long-Term-Deal") and in the event such provision extends beyond the Notice Period, the condition set out in section 4.2 (2) (b) shall be waived. Instead, for each Long-Term-Deal, Groupon shall withhold the percentage set out in the Special Terms and Conditions of the respective total Remittance Amount as security until the Merchant has delivered or provided the Merchant Offering in full to each and every Voucher Holder.
(4) In an effort to increase Voucher sales, the Merchant authorises Groupon to increase or decrease the Voucher Price (any such effort, “Promotional Programme(s)”). For each Voucher sold as part of a Promotional Programme, the Remittance Amount will be adjusted in an amount equal to the percentage increase or decrease in the Voucher Price, provided that, any decrease of the Remittance Amount will not exceed 20% of the Remittance Amount. Promotional Programmes include the following:
(a) Promotional Codes - A "Promotional Code" is a code that purchasers may use, as authorised by the Merchant under this Agreement, to receive a discount on the Voucher Price; and
(b) Price Optimisation - "Price Optimisation" is any change (excluding Promotional Codes) to the Voucher Price.
Groupon shall inform the Merchant of the final selling price of each Voucher.
(5) Any payment made by Groupon to the Merchant shall be without prejudice to any claims or rights which Groupon may have against the Merchant.
4.3 GST and Invoices
(1) Groupon shall be liable for the amount of GST which, under the laws applicable to this Agreement, shall accrue to Groupon. The Merchant shall be liable for the amount of GST which, under the laws applicable to this Agreement, shall accrue to the Merchant.
(2) Groupon shall send an invoice to the Merchant in compliance with applicable law.
(3) The Merchant shall provide Voucher Holders with an invoice in compliance with applicable law.
4.4 Refunds
Groupon has the right to refund any buyer of a Voucher who, in Groupon’s reasonable opinion, has a valid complaint about the Merchant Offering, including, but not limited to, its supply or delivery. If Groupon has already paid the Merchant in respect of such refunded Voucher, Groupon may recover the refunded amount from the Merchant.
4.5 Set-off
Groupon may set off against any amounts payable to the Merchant any amount owed by the Merchant to Groupon (or to a third party, if such third party claims such amount from Groupon or, in Groupon’s reasonable opinion, will likely do so). The Merchant shall not have the right to set off any amounts owed by Groupon.
5. Merchant Centre and Mobile Redemption Device
5.1 Merchant Centre
The Merchant Centre is an on-line tool whereby the Merchant may access information (e.g. analytics and statistics, payment data, customer feedback) and submit data related to Vouchers. In order to use the Merchant Centre, the Merchant must register an account on Groupon’s website and accept the Terms of Use of the Merchant Centre as Additional Terms and Conditions to this Agreement. Groupon reserves the right to require the Merchant to use the Merchant Centre and the Merchant agrees to do so upon Groupon’s request.
5.2 Mobile Redemption Device
If Groupon lends the Merchant a Mobile Redemption Device (the “Device”), the Merchant agrees to be bound by the terms of use, end user license agreements, or other provisions governing its use provided by Groupon as Additional Terms and Conditions.
6. Intellectual Property
6.1 Licensing of IP by the Merchant
For the term of this Agreement, the Merchant grants to Groupon a non-exclusive, worldwide, royalty free, paid- up, irrevocable, transferable and sub-licensable right to use the Merchant’s registered and un-registered intellectual property rights (“Merchant IP”), and any third party’s intellectual property rights supplied by the Merchant to Groupon (“Third Party IP”), including, but not limited to, any editorial text or images.
6.2 Merchant’s Warranties regarding Licensed IP
The Merchant warrants that it owns all interest in and to the Merchant IP, has licensing rights (including the right to sublicense to Groupon) in the Third Party IP, and has the right to grant the license stated in this Agreement.
6.3 Groupon’s IP
The Merchant shall not use any of Groupon’s intellectual property rights or prepare any derivative work based thereon.
7. Confidentiality and Privacy
7.1 This Agreement
The Merchant agrees to keep strictly confidential the terms of this Agreement, all of its contents and all information that it obtained about Groupon’s business, including, but not limited to, the finances, technology and affairs of Groupon.
7.2 Voucher Holder Data
Groupon or an affiliated entity owns all personal data about Voucher Holders. Where Groupon (or an affiliated entity or other third party) makes personal data about Voucher Holders available to the Merchant, the Merchant shall use the personal data of Voucher Holders only to fulfil its obligations in connection with the Merchant Offering, and for no other purpose. The Merchant shall ensure that at all times it implements and complies with reasonable security measures, including, but not limited to, such security measures as prescribed by applicable law, in the handling of any personal data of Voucher Holders. If the Merchant engages any third party to facilitate any of its obligations hereunder, the Merchant shall ensure that such third party complies in the same way with all of the Merchant's obligations under this Agreement.
7.3 International Transfer of Data
Groupon uses affiliated and unaffiliated service providers to process data received from the Merchant, including, without limitation, Groupon International GmbH in Switzerland and Groupon, Inc. in the United States of America, the ultimate Groupon parent company, which is certified under the EU/Swiss-US Safe Harbor Program. Such service providers process personal data only on behalf of and subject to instructions from Groupon under data processing agreements that require adequate data protection measures. The Merchant hereby grants its consent to the transmission of its data to these service providers.
7.4 Background Checks
(1) Groupon reserves the right to make general and specific credit and financial checks and credit-related enquiries about the Merchant and certain individuals and/or legal entities working with and/or for the Merchant. The Merchant consents to these checks and agrees to co-operate with Groupon’s reasonable requests in respect of conducting these checks.
(2) The Merchant acknowledges that Groupon may record phone calls with the Merchant for quality assurance and compliance purposes.
8. Term and Termination
8.1 Term
(1) This Agreement ends when the period for making payments, as set out in sections 4.2 (1) and (3), has expired for the last Feature Period covered by this Agreement.
(2) In the event the number of Feature Periods is not defined, each party may terminate this Agreement with 1 months’ written notice to the end of each Feature Period.
8.2 Termination in Case of Material Breach
(1) Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving notice in writing to the other party if:
(a) the other party commits a material breach of this Agreement and such breach either cannot be remedied or, where remedy is possible, is not remedied within 14 days after a written request to do so; or
(b) the other party commences negotiations with any class of creditors about re-scheduling its debts, an order is made for the other party to be wound up, or an administrator is appointed over the other party.
(2) Without prejudice to Groupon’s other rights hereunder or at law, if the Merchant commits a material breach or persistent breaches of this Agreement, including, but not limited to, its duties under section 1.2, Groupon may suspend its performance under this Agreement until such time as the same are remedied.
8.3 Accrual of Rights and Obligations
Termination of this Agreement in accordance with its terms shall not affect the accrued rights or liabilities of the parties at the date of termination and shall have no effect on: (a) the validity of Vouchers already sold prior to termination; or (b) the Merchant’s obligations to provide the Merchant Offering in respect of such Vouchers.
8.4 Survival
Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including, but not limited to, sections 1.2, 2, 3, 4, 6, 7.1, 7.2, 8.3, 8.4, 9 and 10 shall remain in full force and effect indefinitely.
9. Indemnification
The Merchant agrees to defend, indemnify and hold Groupon, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising out of or relating to any of the following:
(a) any claim by the relevant tax authorities for the tax obligations of the Merchant arising from the issuance, sale or redemption of a Voucher;
(b) any claim by a Voucher Holder or anyone else arising out of or in connection with the Merchant Offering (or any goods and/or services actually or purportedly offered in respect of or in connection to a Voucher) or any other goods and/or services offered by the Merchant, including, but not limited to, claims for personal injury, death, or property damages; and
(c) any breach (or alleged breach) of sections 6, 7.1 or 7.2.
10. Miscellaneous
(1) This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.
(2) No terms and conditions or other document submitted, proposed or stipulated by the Merchant shall be binding between the parties in respect of the transaction set out in this Agreement, unless expressly agreed to in writing by Groupon.
(3) This Agreement may be amended or modified only by mutual written agreement of authorised representatives of the parties.
(4) 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.
(5) Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.
(6) Headings to and within sections of this Agreement are for convenience only and do not form part of this Agreement and shall not affect the interpretation of this Agreement.
(7) The Merchant is not authorised to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Groupon’s prior written consent. Groupon is authorised to transfer or assign this Agreement or any of its rights thereunder to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to the Merchant.
(8) In case this Agreement is in electronic form, the parties agree to use an electronic signature service for the purpose of signing this Agreement; the parties further agree that using an electronic signature shall be treated with the same legal force and effect as a signature written by hand, and will not be denied legal validity solely due to the fact that the signature is in electronic form.
(9) If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected. Such invalid or unenforceable provision shall be replaced by a valid and enforceable provision which most closely achieves the economic effect contemplated by the invalid or unenforceable provision.
(10) This Agreement shall be governed and interpreted by the laws of New South Wales and Australia, without regard to its conflict or choice of law principles. Exclusive venue for any disputes shall be the courts of New South Wales.
(11) The Effective Date of this Agreement shall be the date that the last of Groupon or the Merchant signs this Agreement or otherwise indicates its assent in writing.
ADDITIONAL TERMS AND CONDITIONS FOR THIRD PARTY INVENTORY PLATFORM