Google Offers merchant agreement

Note: Page 1 is the term sheet. The only substantive item on the term sheet is the revenue share. In this case, the merchant received between 50 and 60 percent.

Google Prepaid Offers Beta Program Addendum Confidential Page 2 of 4
Google Inc. v042611
Terms and Conditions

This Google Prepaid Offers Beta Program Addendum (“Addendum”) is entered into by Google Inc. (“Google”) and the entity executing this Addendum (“Merchant”) and is an addendum to and is governed by the Google Advertising Program Terms previously executed by Merchant and Google or, if not previously executed, as available at (the “Terms”), which are incorporated here by reference. This Addendum and the Terms govern Merchant’s participation in the Google Prepaid Offers Beta Program (the “Program”). Capitalized terms not defined in this Addendum have the meanings assigned to them in the Terms. The Program is a “Beta Feature” under the Terms and subject to the confidentiality obligations outlined therein. Merchant is a “Customer” under the Terms. This addendum is effective as of the date of Merchant’s signature above (the “Effective Date”).

1. Definitions
 “Brand Features” means trade names, trademarks, service marks, logos, domain names, and other designators of source or origin.
 “Buyer” means a purchaser of a Merchant Offer.
 “Creative Content” means advertising materials and related technology, including without limitation data, APIs, written text, logos, flash, images and computer code (e.g., XML, HTML, JavaScript).
 “Creative Services” means (a) Google’s design, production or development of any creative assets on Merchant’s behalf using Creative Content for use in ad campaigns (“Campaigns”; collectively, the “Creative Work Product”) and (b) Google’s selection and/or placement of any Creative Work Product or Creative Content on Merchant’s behalf for Campaigns (“Creative Placement”).
 “Google Creative Content” means Creative Content created by Google.
 “Merchant Offer” means a gift certificate, discount, coupon and/or voucher offered to Buyers through the Program that the Buyer may redeem for Merchant’s products and/or services. For clarity, Merchant Offers are “ads” under the Terms.
 “Offer Purchase Period” means the period during which a Merchant Offer is available for purchase via the Program.
 “Pending Merchant Offer” means a Merchant Offer that has not yet been released to potential Buyers through this Program.

2. Google’s Role. Merchant authorizes and consents to Google’s selling any Merchant Offer under the terms listed in the IO (“Offer Terms”). Google may, but is not obligated to, sell Merchant Offers to Buyers and act as the merchant of record under the card brands’ rules for the sale of Merchant Offers. Google will remit revenue share (as specified in the IO) from the sales of Merchant Offers to Merchant as specified in Section 8 of this Addendum. Google is not offering or selling Merchant’s products or services listed in the Merchant Offers. Google is not obligated in any manner to (a) honor or redeem a purchased Merchant Offer; (b) provide refunds to Buyers, except as provided herein or otherwise by law; (c) determine, charge, retain or pay sales tax on its sale of any Merchant Offer. Notwithstanding anything to the contrary, modifications to the Offer Terms to any Pending Merchant Offer by Merchant may be provided orally or in writing by Merchant to its sales contact at Google at least 3 business days before the date on which the Pending Merchant Offer is scheduled to run.

3. Merchant Responsibilities. Merchant will: (a) be responsible for ensuring that the Offer Terms are complete, correct and current before it approves Creative Work Product for the Merchant Offer; (b) honor a purchased Merchant Offer under the Offer Terms; (c) not ask a Buyer to provide any personal information in order for Buyer to redeem a purchased Merchant Offer, except for information Merchant legally collects on all of its customers; (d) be responsible for all funds that it receives from the sale of the Merchant Offers and is responsible for maintaining, reporting and using those funds in compliance with any legal requirements; (e) comply with all laws applicable to promoting, honoring and redeeming a Merchant Offer, including, without limitation, any laws relating to (i) required refunds, (ii) disclosures or (iii) expiration dates for gift certificates, coupons, discounts or vouchers, (iv) tax determination, registration, collection and payment and (v) state abandoned property laws; and (f) not permit a Merchant Offer to be used in a manner that would violate any applicable law. Merchant represents and warrants that it has the financial and operational capability and appropriate inventory, staff and the supply of the relevant goods and services to meet Merchant’s obligations to Buyers for the anticipated number of Merchant Offers that may be purchased and subsequently redeemed by Buyers, as described to Google.

4. Merchant Offers. Merchant Offers will satisfy the following requirements: (a) each purchased Merchant Offer may be redeemed only once unless otherwise stated in the Offer Terms; (b) no fee or charge will be imposed by Merchant on Buyer for redemption of the Merchant Offer, other than applicable tax Merchant may charge; (c) the Merchant Offer may only be transferred by the Buyer in accordance with applicable law; (d) subject to restrictions under applicable law, Merchant may determine whether to permit Merchant Offers to be redeemed for products that are subject to purchase or other legal restrictions, such as alcohol and tobacco products; (e) unless expressly permitted by the Offer Terms, Merchant Offers cannot be applied toward the payment of shipping fees, tips or gratuities, taxes, or outstanding balances owed by Buyer to Merchant; (f) unless expressly permitted by the Offer Terms, Merchant Offers cannot be combined with other coupons, special offers or special discounts offered by Merchant or a third party. Google may use Merchant’s Brand Features for marketing or advertising the Program.

5. Content. Subject to the terms and conditions of this Addendum, Google will provide Merchant Creative Services for Campaigns submitted to Google for the Program. Merchant is solely responsible for (a) Creative Content (other than Google Creative Content) and (b) approval of all Creative Work Product. Merchant warrants that it has and will have all necessary rights and authority to use and to have Google use on Merchant’s behalf the Creative Work Product (including without limitation any Creative Content therein) as contemplated by this Addendum (“Merchant’s Warranty”). Google will own any Google Creative Content but will not claim ownership over any other Creative Content. Google will not use the Creative Work Product (except for the Google Creative Content therein) except for purposes of the Campaigns and inclusion in Google’s marketing and promotional materials. For Creative Work Product that uses any Google API (e.g., Google Gadgets API), such Creative Work Product is subject to the policies applicable to that API. For Creative Work Product that uses Google Maps, any such Creative Work Product will be coded in compliance with the Google Maps API Terms of Service available at (“Maps API TOS”). Merchant may not (i) modify such Creative Work Product in any way that impacts the Google Maps API or (ii) use the Maps API for any purpose other than use in the Creative Work Product, unless in each case Merchant has read and consented to the Maps API TOS. For Creative Work Product that use Merchant’s APIs, Merchant is responsible for confirming that the use of Merchant’s API in the Creative Work Product complies with Merchant’s API terms of service. Google may not (i) modify such Creative Work Product in any way that impacts Merchant’s API or (ii) use Merchant’s API for any purpose other than creating the Creative Work Product, unless in each case Merchant’s permission is received. Google is providing the Creative Services at no additional cost to Merchant.

6. Content Liability. Google will perform the Creative Services with reasonable care (“Limited Warranty”). Except for the previous sentence, Google makes no representations, warranties or covenants about the Creative Services, any Creative Work Product (including the Creative Content therein) or any Creative Placements. Without limiting the generality of the foregoing, Google has no liability for any Creative Content, Creative Work Product or Creative Placements. Merchant’s sole remedy for any breach of the Limited Warranty or any of Google’s other obligations in this Section 6 is to require Google to re-perform the applicable Creative Services free of cost. Merchant will indemnify, defend and hold harmless Google, its Partners, agents, affiliates, and licensors from any third party claim or liability arising out of any Creative Work Product, Creative Placement and any breach of Merchant’s Warranty. Partners are deemed third party beneficiaries of the above Partner indemnity.

7. Refund Policy. Google may refund Buyers for purchased Merchant Offers for any reason at any time. Within 90 days after the Offer Purchase Period of a Merchant Offer, any refund by Google to a Buyer for the Merchant Offer will cause Merchant to immediately forfeit or otherwise provide to Google any revenue share it received or would have received for the Merchant Offer.

8. Payment. Google Payment Corporation will act as the paying agent for Google and will transfer funds owed by Google to Merchant via electronic funds transfers to a bank account Merchant registers with the Program. Merchant authorizes and consents to Google’s deducting, from the revenue share from the sale of Merchant Offers, the amount of funds that Google is entitled to hold as reserves and other amounts due and owing to Google or its affiliates. The sales price and the revenue share percentage specified in the IO or through a Google user interface for this Program, as well as any refunds made under Section 7, will determine the amount of payment Merchant will receive for purchases of its Merchant Offers. Google will retain the remainder of the proceeds from the sale of Merchant Offers. Except as stated herein, each party is responsible for its own costs under this Addendum. Google will initiate payment to Merchant representing 80 percent of the amount due to Merchant based on purchased Merchant Offers, adjusted for refunds, reversals, and chargebacks, within 4 business days after the close of the Offer Purchase Period. Google will initiate payment to Merchant for the remaining 20 percent of the amount due to Merchant based on purchased Merchant Offers, adjusted for refunds, reversals, and chargebacks, within 90 days after the close of the Offer Purchase Period. Merchant authorizes and consents to Google holding this remaining 20 percent for 90 days as a reserve for the payment of refunds,reversals, and chargebacks, and any other amounts due and owing to Google or its affiliates. Google reserves the right to withhold any payment to Merchant if Merchant does not comply with the Merchant Offer terms as provided to Google. Google will not be liable for any payment (a) based on any purchase of any Merchant Offer through any fraudulent or invalid means, as determined by Google in its sole and absolute discretion, including but not limited to the fraudulent use of credit cards or other means of payment, (b) based on purchases of Merchant Offers that are refunded or (c) subject to a credit card charge back by a Buyer. Google reserves the right to withhold payment, offset amounts owed to Merchant or debit Merchant’s designated bank account because of any of the foregoing. Merchant agrees to cooperate with Google in its investigation of any of the foregoing. Merchant is responsible for immediately refunding and/or repaying to Google any payment made by Google under this Addendum that is later subject to a return, chargeback, reversal, refund, adjustment or rejection whether by a bank, Buyer action or otherwise, or that was paid in error or paid as a result of miscalculation by either Google or Merchant (“Merchant Repayments”). Merchant authorizes Google to offset and net current amounts owed by Google to Merchant against the amount of any Merchant Repayments owed by Merchant to Google. All payments and refunds contemplated hereunder will be made in U.S. dollars.

9. Term/Termination. This Addendum begins on the Effective Date and continues for a period of 6 months thereafter(the “Initial Term”). After the Initial Term, this Addendum will automatically renew on these same terms and conditions for successive one-year periods (each a “Renewal Term”). The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.” Notwithstanding anything in the Terms to the contrary except for Google’s rights to cancel under the Terms, either party may terminate this Addendum (and the Terms solely as they relate to this Addendum) at any time (a) with 30 days prior written notice with or without cause or (b) with prior notice and the other party’s consent. Sections 3, 4, 6, 7 and, only with respect to revenue received by Google but not distributed to Merchant by the termination date, 8 will survive any expiration or termination of this Addendum. Merchant may cancel a Pending Merchant Offer online if online cancellation functionality is available to Merchant, or, if not available to Merchant, with prior written notice to the Merchant’s Account Manager at Google, including without limitation by electronic mail, at least 3 business days before the date on which the Pending Merchant Offer is scheduled to run. Merchant may not cancel a Merchant Offer thereafter.

About Rakesh Agrawal

Rakesh Agrawal is Senior Director of product at Amazon (Audible). Previously, he launched local and mobile products for Microsoft and AOL. He tweets at @rakeshlobster.
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