reDesign

June 16, 2011

LivingSocial merchant agreement

Filed under: livingsocial — Rakesh Agrawal @ 12:51 am

See the Groupon, LivingSocial and daily deals merchant FAQ.

LivingSocial Merchant Agreement (US) v1.3 CONFIDENTIAL
LIVINGSOCIAL MERCHANT SERVICE AGREEMENT
Order Form

This LivingSocial Merchant Service Agreement Order Form is governed by the  attached  LivingSocial Merchant Service
Agreement Standard Terms & Conditions, which are incorporated herein by reference. The Order Form and Standard Terms
& Conditions together comprise a binding and enforceable agreement.
Effective Date:   9/[redacted]/2010
Parties:
Hungry Machine, Inc., d/b/a LivingSocial
829 7th Street, NW, 3rd Floor
Washington, DC 20001
Fax: 202-318-7758
Merchant
Name:  [redacted]
Address:
,
Check Payable to (if different from Merchant Name):
Address for receiving payment (if different from above):
,
[redacted]
Description of Deal Promotion:
Merchant Product/Service:  1 hour massage
1 hour massage or apply value towards longer massage
Deal Price (i.e., fees paid by consumer): $ 47
Deal Value (i.e., full value of Voucher or approximate value of Deal): $ 95
Multiple Offers:
Description:
Expiration Date: 12 Months from issue date on Voucher , or
Other:
Vouchers must be redeemed by the Expiration Date (or for redemptions requiring an appointment, the appointment must be
scheduled prior to the Expiration Date), except to the extent that applicable law requires that the Merchant extend the period
in which the Voucher may be redeemed.
Note: Merchant is solely responsible for ensuring that Voucher expiration complies with applicable federal and state
laws regarding gift certificates.
Commission Fee: 50% of paid Deal Price
Merchant Fan Program:  No
Opt-In Fan Discount / Program Fee: $
Redemption Options: Print Voucher;Call Number;Visit Website,
If Phone: [redacted]
If Email:
Number of Redemption Locations: 1
Maximum Vouchers (if applicable): No Max,
Limit of Vouchers per Purchaser: 1
Limit of Gifts per Purchaser: No Limit
Multiple Vouchers Can be Combined in One Purchase?: False
If so, how many?:
Deal Limitations: Limit 1 Per Person;Not Valid on Holidays, For new customers only
No partial redemption
Other Additions:
Will honor all purchased vouchers
[End of Order Form]

LIVINGSOCIAL MERCHANT SERVICE AGREEMENT
Standard Terms and Conditions (US) v.1.3
These LivingSocial Merchant Service Agreement Standard Terms & Conditions together with a Merchant Service Agreement
Order Form are collectively referred to herein as the “Agreement.”
1. Nature of Services
This Agreement relates to the placement of marketing and
promotion services by Merchant with LivingSocial.
LivingSocial will promote a  voucher for the Merchant
product or service with the particular deal characteristics
identified in the Order Form, in accordance with this
Agreement. The Merchant is the “issuer” of the voucher
for its Deal, and LivingSocial acts as the marketing agent
for the Deal.
2. LivingSocial Responsibilities
a. Deal Creatives. LivingSocial  may use Merchant Content
to  prepare one or more promotional creatives for the
particular Deal (“Deal Creatives”), in its discretion,
which may include a Deal page hosted on the
LivingSocial.com website or other websites offered with
our distribution partners, an email creative to be
distributed to potential purchasers of the Deal voucher, or
other similar creatives for online promotion of the Deal.
Deal Creatives will be subject  to Merchant’s prior
approval (which may be made by email), not to be
unreasonably withheld or delayed. Once a Deal Creative
has been approved, LivingSocial is deemed to have
approval to use and promote other Deal Creatives that are
substantially similar to the approved Deal Creative.
b. Promotion.   LivingSocial  will offer and promote the
Merchant product or service identified in the Order Form
(the “Merchant Product”) through LivingSocial’s online
platform on the terms and conditions described in the
Order Form and the Deal Creatives approved by Merchant
(the “Deal”), including the discounted price to be paid by
the purchaser (the “Deal Price”).   The scheduled time
period that each Deal is marketed and offered (the “Offer
Period”) will be designated solely by LivingSocial.
Without limiting the foregoing, an Offer Period is
typically 24 hours for Deals made available on Monday
through Thursday or 72 hours for Deals offered over a
weekend. Offer Periods are subject to scheduling change
or cancellation in  the sole discretion of LivingSocial.
LivingSocial will endeavor to notify Merchant in advance
of the Offer Period, however, LivingSocial provides no
guarantee that it will provide advance notice of Offer
Periods or changes to a planned Offer Period.
c. Vouchers.   LivingSocial will issue each purchaser of the
Merchant Product (each a “Purchaser”) a numbered
voucher for each purchase (each a “Voucher”).  Within
one business day following the end of the Offer Period,
LivingSocial will provide Merchant with the names of all
persons having the right to redeem the Vouchers and the
corresponding Voucher numbers.
d. Merchant Fan Program. If Merchant opts-in to the
Merchant Fan Program on the Order Form, then at the
time a Purchaser goes through the check-out process for
the Voucher, (s)he will be presented with an opportunity
to “like” (or equivalent) Merchant’s existing FaceBook
fan page in exchange for an extra promotional discount to
the Deal Price (the “Opt-In Fan Discount”). For
example, if the standard offer for a Deal is $25 for $50 of
value and the Opt-In Fan Discount is $5, then the Deal
would be $20 for $50 of value for the purchaser who has
opted into the Merchant Fan Program.
3.Merchant Responsibilities
a. Issuer.  Merchant agrees and acknowledges that Living
Social markets and facilitates the purchase of the Deal,
but that Merchant remains the  issuer of the Vouchers.
Accordingly Merchant agrees that it, and not Living
Social, is solely responsible to fulfill the Deal and provide
the Merchant Product to the individual redeeming each
Voucher in accordance with this Agreement.
b. Fulfillment. Merchant agrees to honor and fulfill all
Vouchers sold for the Deal in accordance with the terms
of the Deal,  the standard LivingSocial  Terms and
Conditions  [  http://www.livingsocial.com/terms ],  this
Agreement, and any applicable laws. Merchant agrees to
accept Vouchers in any form presented for redemption
that has been approved by LivingSocial, including,
without limitation,  a  physical printout of the Voucher or
by displaying the Voucher on a mobile device such as an
iPhone at the point of service. Merchant shall not treat
Voucher holders differently from other paying customers
in the scheduling (e.g., use of blackout dates and times) or
delivery of services, except as expressly set forth in the
Deal. For Deals that require advance scheduling,
Merchant shall use its best efforts to accommodate the
scheduling request of the Voucher holder. Except as
expressly set forth in the Deal, Merchant shall permit
Voucher holders to redeem Vouchers after the Expiration
Date for Vouchers that require advance scheduling if the
Voucher holder contacts Merchant prior to the Expiration
Date for the purpose of scheduling service.
c. Merchant Content. Merchant may be asked to provide a
logo, photograph, or other marketing materials
(“Merchant Content”) to be used in developing the Deal
Creatives.   Merchant hereby grants LivingSocial a nonexclusive worldwide license to reproduce, use, display,
perform, distribute, and create derivative works based
upon the Merchant Content for the purpose of developing,
distributing, and otherwise promoting the Deal Creatives
as LivingSocial deems appropriate.  After the term of this
Agreement, LivingSocial may continue to use and
distribute the Deal Creatives as exemplars and for general
promotional purposes.
d. Redemption Data. Merchant shall collect  and provide to
LivingSocial on a regular basis, no less frequently than
monthly, a list of the serial numbers of redeemed
Vouchers. Merchant may provide this information in
paper or digital form or, when available, using
LivingSocial’s merchant portal through which Merchant
can record such data.
4. Fees and Payment
a. Commission Fee. In consideration for fulfilling its
obligations under this Agreement, LivingSocial will be
entitled to retain the Commission Fee set forth in the
Order Form on all payments received from Purchasers of
the Vouchers and the Program Fee, if any.
b.Merchant Payment. Subject to Merchant’s performance of
its obligations under this Agreement,  LivingSocial shall
remit to Merchant all payments received from Purchasers
of Vouchers, minus the Commission Fee (the “Merchant
Payment”). Unless otherwise agreed by the Parties, the
amounts due Merchant will be paid by check.  The
Merchant Payment will be mailed to Merchant within
fifteen (15) business days after the end of the Offer
Period. In the event LivingSocial has received a
substantial number of customer complaints or requests for
refunds, as determined in its discretion, LivingSocial may
hold-back up to a third of the Merchant Payment until the
parties have reached a mutually acceptable plan for
resolving the complaints.
c. Taxes.   Merchant will be solely responsible for collecting
and remitting any value added, use or sales taxes owed to
federal, state, or local taxing authorities  in connection
with the sale or redemption of Vouchers.
5. Refunds
Merchant agrees that LivingSocial shall have the right to
refund the Deal Price to any Purchaser who is dissatisfied
with the experience of scheduling and using the Merchant
Product, provided that LivingSocial also refunds the
Commission Fee associated with such purchase. In such
cases, if the refund occurs before payment in full  of the
Merchant Payment has been made to Merchant, the
refunded fees (not including any refunded Commission
Fees) will be set-off against amounts owed to the
Merchant. If the Merchant has already been paid  the
Merchant Payment in full, it agrees promptly to repay to
LivingSocial the amount of refunded fees (not including
any refunded Commission Fees).
6. Representations and Warranties
a. General.  Each Party hereby represents and warrants that
(a) it has the authority to enter into this Agreement and to
fully perform its obligations hereunder, (b) this
Agreement does not and will not conflict with any of the
Party’s other obligations to any third parties, and (c) it
complies and will comply with all applicable laws and
regulations.
b. Service Warranties.  Merchant additionally represents and
warrants that: (a) it will provide the Merchant Product in a
safe and professional manner; (b)  the Merchant Content
does not infringe or misappropriate any third party
copyright, trademark, right of publicity, moral right, trade
secret, or other proprietary right, and (c)  it will  comply
with applicable federal and state laws related to
redemption of  the Vouchers, including those related to
deceptive trade practices, unclaimed property liability
associated with Vouchers that  have not been redeemed,
alcohol related service and discounting, and expiration of
gift cards.    Merchant acknowledges that the Deal terms
will state in the  Deal Creatives and printed on the
Voucher that all or a portion of the Voucher expires after
a stated Expiration Date, and if required by law, that the
Deal Price does not expire, if at all, until a later date.
Merchant is responsible to ensure that it enforces
expiration of the Vouchers only in accordance with
applicable federal and state laws.  In addition, federal
and/or state laws may require that the  Merchant, upon
request, provide the Purchaser or holder of a Voucher
cash redemption for all or some portion of the Voucher.
Merchant, and not LivingSocial, is responsible to comply
with any cash redemption requirements.
7. Indemnification
a. Indemnity. Merchant shall indemnify, defend, and hold
harmless LivingSocial, its directors, officers, employees,
and agents from and against any and all claims, demands,
causes of action, or liabilities, and expenses, including
reasonable attorney’s fees, to the extent arising out of the
Deal, the  Voucher, the Merchant Product and  the
fulfillment thereof, and/or any breach or alleged breach of
any Merchant obligation, representation, or warranty
under this Agreement.
b. Process.  LivingSocial must notify Merchant promptly in
writing of any claim for indemnification hereunder, and
provide, at  Merchant’s expense (to the extent of out-ofpocket expenses only), all reasonably necessary
assistance, information and authority to allow Merchant to
control the defense and settlement of such claim, provided
that the failure of  LivingSocial to promptly inform
Merchant of any claim shall not excuse  Merchant of its
obligations under this Section except to the extent such
failure materially prejudices  Merchant.  Notwithstanding
the foregoing,  Merchant shall not enter into any
settlement of the defense of such action, other than with
respect to the payment of monies, without LivingSocial’s
prior written consent, which consent shall not be
unreasonably withheld or delayed.   LivingSocial may
participate at its expense in the defense and/or settlement
of any such action with counsel of its choosing and at its
sole expense
8. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF  SUCH
DAMAGES), ARISING FROM BREACH OF THIS
AGREEMENT, OR ARISING FROM ANY OTHER
PROVISION OF THIS AGREEMENT, SUCH AS, BUT
NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, “DISCLAIMED DAMAGES”).
LIVING SOCIAL’S CUMULATIVE LIABILITY
RELATED TO DIRECT DAMAGES WILL BE
LIMITED TO THE COMMISSION FEES RECEIVED
BY LIVING SOCIAL RELATED TO THE DEAL SET
FORTH IN THE ORDER FORM.  THESE
LIMITATIONS SHALL NOT APPLY TO ANY
INDEMNIFICATION OBLIGATION.
9. Term
a. Term.  This Agreement shall commence on the Effective
Date and end on the Expiration Date.
b. Termination.  Either party may terminate this Agreement
upon breach by the other party.   LivingSocial may cancel
this Agreement, in its discretion, upon notice to Merchant
at any time prior to the Offer Period.
c. Survival. Sections  3(d), 5, 6, 7, 8, 9(c), and 10 shall
survive expiration or termination of this Agreement. In
addition, following termination or expiration, Merchant
shall continue to honor all Vouchers, according to their
terms, for which Merchant Payments have been remitted
by LivingSocial.
10. Miscellaneous
a. Confidentiality.  The terms of this Agreement are to be
treated by Merchant as confidential. The Deal, Deal Price,
and Offer Period are also to be treated as confidential
until the Deal has been publicly promoted by
LivingSocial.  Merchant agrees not to disclose any such
confidential information to any third party, other than its
legal, tax, and accounting advisors who are bound by a
duty of confidentiality or as required by applicable law.
b. Entire Agreement. This Agreement is the entire
agreement of the Parties with respect to the subject matter
hereof, and supersedes any and all prior agreements
and/or understandings, whether written or oral.  This
Agreement  shall not be modified except by a written
agreement dated subsequent hereto signed on behalf of
each Party by their duly authorized representatives.
c. Notices.   All notices and requests in connection with this
Agreement will be deemed given as of the day they are
received either by facsimile, messenger, delivery service,
or in the Mail, postage prepaid, certified or registered,
return receipt requested, and addressed  to a Party at the
address specified in the Order Form or such other address
as a Party may designate pursuant to this notice provision.
d.Waiver.  No waiver of any term or condition hereof shall
be effective unless in writing and signed by the authorized
representative of the Party against whom such waiver is
asserted.  Any waiver shall be specifically limited to its
terms, and shall not be deemed applicable to subsequent
like circumstances.
e. Governing Law. This Agreement shall be governed by the
laws  of  the District of Columbia, without reference to
principles of conflicts of  law, and the Parties further
consent to the exclusive jurisdiction  of the local  and
federal courts located in Washington, DC to resolve any
dispute that may arise between the Parties relating to this
Agreement.
f. Counterparts.  This Agreement may be executed in one or
more counterparts, which may be exchanged by facsimile
or other electronic means, each of which shall be deemed
an original and which together shall constitute one and the
same agreement.
[End of Standard Terms and Conditions]
Authorization & E-Signing
I represent that I am a duly authorized representative of Merchant and that my act of  e-signing this
document shall be a binding commitment of Merchant under the terms of this LivingSocial Merchant
Service Agreement Order Form and Standard Terms & Conditions.
{{_es_signer1_signatureblock}}
_____________________________________
(Signature)
{{*_es_signer1_LegalBusinessName}}
_______________________________________
(Legal Business Name)
{{*_es_signer1_BusinessType}}
_______________________________________
Business Type (Individual/Sole proprietor, Corporation, LLC)
{{*_es_signer1_SSN_EIN}}
______________________________________
(Social Security/Employer Identification Number)

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12 Comments »

  1. Will Groupon-type offers get regulated as gift cards?…

    Groupon and LivingSocial, in their terms and conditions, push this responsibility off on to the merchant. For example, from LivingSocial’s merchant agreement: Note: Merchant is solely responsible for ensuring that Voucher expiration complies with appl…

    Trackback by Quora — June 20, 2011 @ 6:59 am

  2. Nice of you to post a confidential agreement onto the internet.
    Good luck finding someone to employ you with these kinds of standards.

    Comment by Bob bobberson — June 29, 2011 @ 3:53 am

  3. [...] LivingSocial merchant agreement [...]

    Pingback by Roundup of my Groupon and daily deals coverage « reDesign — July 4, 2011 @ 9:22 am

  4. Hi, do you have a copy of the actual contract you can share?

    Comment by invisible — October 9, 2011 @ 11:56 am

  5. [...] merchant agreementRevised Groupon merchant agreementThe chart every member of Congress should seeLivingSocial merchant agreementCommunicating amongst friends: how technology changes human relationshipsBest practices for [...]

    Pingback by Groupon, LivingSocial and daily deals – merchant FAQ « reDesign — January 21, 2012 @ 6:57 pm

  6. Hello

    I’d just like to inform you that “Living social” have failed to pay our company for the promotion we ran with them

    They paid half of the first and non of the second

    They have stopped returning calls or E-mails

    Others have contacted me regarding the same issue of non payment

    Kind regards

    Geoffrey

    Comment by Geoffrey — November 8, 2012 @ 11:59 pm

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  8. Hi,
    Could someone send me copy of the agreement please.
    tom@hpromotions.com.au

    Thanks a lot

    Comment by tom@hpromotions.com.au — October 15, 2013 @ 4:18 pm

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